anti-money laundering and counter-terrorism financing · pdf fileiv anti-money laundering and...

Anti-Money Laundering and

Counter-Terrorism Financing Act 2006

Act No. 169 of 2006 as amended

This compilation was prepared on 8 December 2011

taking into account amendments up to Act No. 132 of 2011

The text of any of those amendments not in force

on that date is appended in the Notes section

The operation of amendments that have been incorporated may be

affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,

Attorney-General’s Department, Canberra

ComLaw Authoritative Act C2011C00946

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 iii

Contents

Part 1—Introduction 1 1 Short title [see Note 1] ....................................................................... 1 2 Commencement ................................................................................. 1 3 Objects ............................................................................................... 3 4 Simplified outline .............................................................................. 5 5 Definitions ......................................................................................... 6 6 Designated services ......................................................................... 35 7 Services provided jointly to 2 or more customers ............................ 58 8 Person-to-person electronic funds transfer instructions ................... 58 9 Same-person electronic funds transfer instructions ......................... 60 10 Designated remittance arrangements etc. ........................................ 62 11 Control test ...................................................................................... 63 12 Owner-managed branches of ADIs .................................................. 64 13 Eligible gaming machine venues ..................................................... 64 14 Residency ........................................................................................ 64 15 Shell banks ...................................................................................... 66 16 Electronic communications ............................................................. 67 17 Bearer negotiable instruments ......................................................... 67 18 Translation of foreign currency to Australian currency ................... 68 19 Translation of e-currency to Australian currency ............................ 68 20 Clubs and associations ..................................................................... 68 21 Permanent establishment ................................................................. 68 22 Officials of designated agencies etc. ................................................ 69 23 Continuity of partnerships ............................................................... 70 24 Crown to be bound .......................................................................... 70 25 Extension to external Territories ..................................................... 70 26 Extra-territorial application ............................................................. 71

Part 2—Identification procedures etc. 72

Division 1—Introduction 72 27 Simplified outline ............................................................................ 72

Division 2—Identification procedures for certain

pre-commencement customers 73 28 Identification procedures for certain pre-commencement

customers ......................................................................................... 73 29 Verification of identity of pre-commencement customer etc. .......... 73

Division 3—Identification procedures for certain low-risk

services 75 30 Identification procedures for certain low-risk services .................... 75 31 Verification of identity of low-risk service customer etc. ................ 75


iv Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Division 4—Identification procedures etc. 77 32 Carrying out the applicable customer identification

procedure before the commencement of the provision of a

designated service. ........................................................................... 77 33 Special circumstances that justify carrying out the applicable

customer identification procedure after the commencement

of the provision of a designated service ........................................... 77 34 Carrying out the applicable customer identification

procedure after the commencement of the provision of a

designated service etc. ..................................................................... 78

Division 5—Verification of identity etc. 80 35 Verification of identity of customer etc. .......................................... 80

Division 5A—Use and disclosure of personal information for the

purposes of verifying an individual’s identity 81 35A Reporting entities may disclose certain personal information

to credit reporting agencies for identity verification purposes ......... 81 35B Credit reporting agencies may use and disclose certain

personal information for identity verification purposes ................... 82 35C Reporting entities to notify inability to verify identity .................... 83 35D Verification information not to be included on credit

information file ................................................................................ 83 35E Retention of verification information—credit reporting

agencies ........................................................................................... 83 35F Retention of verification information—reporting entities ............... 84 35G Access to verification information ................................................... 85 35H Unauthorised access to verification information—offence .............. 85 35J Obtaining access to verification information by false

pretences—offence .......................................................................... 85 35K Unauthorised use or disclosure of verification information—

offence ............................................................................................. 86 35L Breach of requirement is an interference with privacy .................... 86

Division 6—Ongoing customer due diligence 87 36 Ongoing customer due diligence ..................................................... 87

Division 7—General provisions 89 37 Applicable customer identification procedures may be

carried out by an agent of a reporting entity .................................... 89 38 Applicable customer identification procedures deemed to be

carried out by a reporting entity ....................................................... 89 39 General exemptions ......................................................................... 90

Part 3—Reporting obligations 92

Division 1—Introduction 92 40 Simplified outline ............................................................................ 92


Anti-Money Laundering and Counter-Terrorism Financing Act 2006 v

Division 2—Suspicious matters 93 41 Reports of suspicious matters .......................................................... 93 42 Exemptions ...................................................................................... 95

Division 3—Threshold transactions 97 43 Reports of threshold transactions ..................................................... 97 44 Exemptions ...................................................................................... 97

Division 4—International funds transfer instructions 99 45 Reports of international funds transfer instructions ......................... 99 46 International funds transfer instruction .......................................... 100

Division 5—AML/CTF compliance reports 102 47 AML/CTF compliance reports ...................................................... 102 48 Self-incrimination .......................................................................... 103

Division 6—General provisions 104 49 Further information to be given to the AUSTRAC CEO etc. ........ 104 49A AML/CTF Rules may make provision in relation to reports

by registered remittance affiliates .................................................. 105 50 Request to obtain information about the identity of holders

of foreign credit cards and foreign debit cards .............................. 106 51 Division 400 and Chapter 5 of the Criminal Code ........................ 107

Part 3A—Reporting Entities Roll 108 51A Simplified outline .......................................................................... 108 51B Reporting entities must enrol ......................................................... 108 51C Reporting Entities Roll .................................................................. 108 51D Enrolment ...................................................................................... 109 51E Applications for enrolment ............................................................ 109 51F Enrolled persons to advise of change in enrolment details ............ 109 51G Removal of entries from the Reporting Entities Roll..................... 110

Part 4—Reports about cross-border movements of physical

currency and bearer negotiable instruments 111

Division 1—Introduction 111 52 Simplified outline .......................................................................... 111

Division 2—Reports about physical currency 112 53 Reports about movements of physical currency into or out of

Australia ........................................................................................ 112 54 Timing of reports about physical currency movements ................. 113 55 Reports about receipts of physical currency from outside

Australia ........................................................................................ 115 56 Obligations of customs officers and police officers ....................... 116 57 Movements of physical currency out of Australia ......................... 116 58 Movements of physical currency into Australia ............................ 116


vi Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Division 3—Reports about bearer negotiable instruments 117 59 Reports about movements of bearer negotiable instruments

into or out of Australia................................................................... 117 60 Obligations of customs officers and police officers ....................... 118

Division 4—Information about reporting obligations 119 61 Power to affix notices about reporting obligations ........................ 119 62 Notice about reporting obligations to be given to travellers to

Australia ........................................................................................ 120

Part 5—Electronic funds transfer instructions 121


Division 2—2 or more institutions involved in the transfer 122 64 Electronic funds transfer instructions—2 or more institutions

involved in the transfer .................................................................. 122 65 Request to include customer information in certain

international electronic funds transfer instructions ........................ 125

Division 3—Only one institution involved in the transfer 128 66 Electronic funds transfer instructions—only one institution

involved in the transfer .................................................................. 128

Division 4—General provisions 130 67 Exemptions .................................................................................... 130 68 Defence of relying on information supplied by another

person ............................................................................................ 131 69 Division 400 and Chapter 5 of the Criminal Code ........................ 132 70 Required transfer information........................................................ 132 71 Complete payer information .......................................................... 133 72 Tracing information ....................................................................... 134

Part 6—The Remittance Sector Register 135

Division 1—Simplified outline 135 73 Simplified outline .......................................................................... 135

Division 2—Restrictions on providing certain remittance

services 136 74 Unregistered persons must not provide certain remittance

services .......................................................................................... 136

Division 3—Registration of persons 139 75 Remittance Sector Register ........................................................... 139 75A Information to be entered on the Remittance Sector Register........ 139 75B Applications for registration .......................................................... 140 75C Registration by AUSTRAC CEO .................................................. 141 75D Spent convictions scheme .............................................................. 143


Anti-Money Laundering and Counter-Terrorism Financing Act 2006 vii

75E Registration may be subject to conditions ..................................... 143 75F When registration of a person ceases ............................................. 143 75G Cancellation of registration ........................................................... 144 75H Suspension of registration ............................................................. 144 75J Renewal of registration .................................................................. 145 75K Removal of entries from the Remittance Sector Register .............. 146 75L AML/CTF Rules—general provision ............................................ 147 75M Registered persons to advise of material changes in

circumstance etc. ........................................................................... 147 75N AUSTRAC CEO may request further information ........................ 148 75P Immunity from suit ........................................................................ 148

Division 4—Notice and review of decisions 150 75Q Steps to be taken by AUSTRAC CEO before making certain

reviewable decisions ...................................................................... 150 75R Internal review of reviewable decisions ........................................ 150 75S AAT review of decisions ............................................................... 152

Division 5—Basis of registration 153 75T Basis of registration ....................................................................... 153

Part 7—Anti-money laundering and counter-terrorism

financing programs 154


Division 2—Reporting entity’s obligations 155 81 Reporting entity must have an anti-money laundering and

counter-terrorism financing program ............................................. 155 82 Compliance with Part A of an anti-money laundering and

counter-terrorism financing program ............................................. 155

Division 3—Anti-money laundering and counter-terrorism

financing programs 157 83 Anti-money laundering and counter-terrorism financing

programs ........................................................................................ 157 84 Standard anti-money laundering and counter-terrorism

financing program ......................................................................... 157 85 Joint anti-money laundering and counter-terrorism financing

program ......................................................................................... 159 86 Special anti-money laundering and counter-terrorism

financing program ......................................................................... 161 87 Revocation of adoption of anti-money laundering and

counter-terrorism financing program ............................................. 162 88 Different applicable customer identification procedures ............... 162 89 Applicable customer identification procedures—agent of

customer ........................................................................................ 163


viii Anti-Money Laundering and Counter-Terrorism Financing Act 2006

90 Applicable customer identification procedures—customers

other than individuals .................................................................... 164 91 Applicable customer identification procedures—disclosure

certificates ..................................................................................... 166

Division 4—Other provisions 168 92 Request to obtain information from a customer ............................. 168 93 Exemptions .................................................................................... 169

Part 8—Correspondent banking 170 94 Simplified outline .......................................................................... 170 95 Prohibition of entry into correspondent banking relationships

with shell banks etc. ...................................................................... 170 96 Termination of correspondent banking relationship with shell

bank etc. ........................................................................................ 171 97 Due diligence assessments before entering into

correspondent banking relationships etc. ....................................... 172 98 Regular due diligence assessments of correspondent banking

relationships etc. ............................................................................ 173 99 Other rules about correspondent banking relationships ................. 174 100 Geographical links ......................................................................... 175

Part 9—Countermeasures 176 101 Simplified outline .......................................................................... 176 102 Countermeasures ........................................................................... 176 103 Sunsetting of regulations after 2 years ........................................... 177

Part 10—Record-keeping requirements 178

Division 1—Introduction 178 104 Simplified outline .......................................................................... 178 105 Privacy Act not overridden by this Part ......................................... 178

Division 2—Records of transactions etc. 179 106 Records of designated services ...................................................... 179 107 Transaction records to be retained ................................................. 180 108 Customer-provided transaction documents to be retained ............. 180 109 Records relating to transferred ADI accounts ................................ 181 110 Retention of records relating to closed ADI accounts ................... 182

Division 3—Records of identification procedures 184 111 Copying documents obtained in the course of carrying out an

applicable custom identification procedure ................................... 184 112 Making of records of identification procedures ............................. 184 113 Retention of records of identification procedures .......................... 185 114 Records of identification procedures deemed to have been

carried out by a reporting entity ..................................................... 186


Anti-Money Laundering and Counter-Terrorism Financing Act 2006 ix

Division 4—Records about electronic funds transfer instructions 189 115 Retention of records about electronic funds transfer

instructions .................................................................................... 189

Division 5—Records about anti-money laundering and

counter-terrorism financing programs 191 116 Records about anti-money laundering and counter-terrorism

financing programs ........................................................................ 191

Division 6—Records about due diligence assessments of

correspondent banking relationships 193 117 Retention of records of due diligence assessments of

correspondent banking relationships ............................................. 193

Division 7—General provisions 194 118 Exemptions .................................................................................... 194 119 This Part does not limit any other obligations ............................... 194

Part 11—Secrecy and access 195


Division 2—Secrecy 196 121 Secrecy—AUSTRAC information and AUSTRAC

documents ...................................................................................... 196 122 Secrecy—information obtained under section 49 .......................... 197

Division 3—Disclosure of information 200 123 Offence of tipping off .................................................................... 200 124 Report and information not admissible .......................................... 204

Division 4—Access to AUSTRAC information by agencies 206

Subdivision A—Access by the ATO to AUSTRAC information 206 125 Access by the ATO to AUSTRAC information ............................. 206

Subdivision B—Access by designated agencies to AUSTRAC

information 207 126 Access by designated agencies to AUSTRAC information ........... 207 127 Dealings with AUSTRAC information once accessed .................. 208 128 When AUSTRAC information can be passed on by an

official of a designated agency ...................................................... 209

Subdivision C—Access by non-designated Commonwealth

agencies to AUSTRAC information 216 129 Access by non-designated Commonwealth agencies to

AUSTRAC information ................................................................. 216 130 Dealings with AUSTRAC information once accessed .................. 216 131 When AUSTRAC information can be passed on by an

official of a non-designated Commonwealth agency ..................... 217


x Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Subdivision D—Communication of AUSTRAC information to

foreign countries etc. 218 132 Communication of AUSTRAC information to a foreign

country etc. .................................................................................... 218 133 When the Director-General of Security may communicate

AUSTRAC information to a foreign intelligence agency .............. 221 133A When the Director-General of ASIS may communicate

AUSTRAC information to a foreign intelligence agency .............. 221 133B When the Director of a defence intelligence agency may

communicate AUSTRAC information to a foreign

intelligence agency ........................................................................ 222 133C When the Director-General of ONA may communicate

AUSTRAC information to a foreign intelligence agency .............. 222

Division 5—Use of AUSTRAC information in court or tribunal

proceedings 224 134 Use of AUSTRAC information in court or tribunal

proceedings .................................................................................... 224

Part 12—Offences 225 135 Simplified outline .......................................................................... 225 136 False or misleading information .................................................... 225 137 Producing false or misleading documents ..................................... 226 138 False documents ............................................................................ 227 139 Providing a designated service using a false customer name

or customer anonymity .................................................................. 228 140 Receiving a designated service using a false customer name

or customer anonymity .................................................................. 229 141 Customer commonly known by 2 or more different names—

disclosure to reporting entity ......................................................... 230 142 Conducting transactions so as to avoid reporting

requirements relating to threshold transactions ............................. 230 143 Conducting transfers so as to avoid reporting requirements

relating to cross-border movements of physical currency ............. 231

Part 13—Audit 233


Division 2—Appointment of authorised officers and issue of

identity cards 234 145 Appointment of authorised officers ............................................... 234 146 Identity cards ................................................................................. 234

Division 3—Powers of authorised officers 236

Subdivision A—Monitoring powers 236


Anti-Money Laundering and Counter-Terrorism Financing Act 2006 xi

147 Authorised officer may enter premises by consent or under a

monitoring warrant ........................................................................ 236 148 Monitoring powers of authorised officers ...................................... 236 149 Tampering or interfering with things secured in the exercise

of monitoring powers .................................................................... 238

Subdivision B—Powers of authorised officers to ask questions and

seek production of documents 239 150 Authorised officer may ask questions and seek production of

documents ...................................................................................... 239

Division 4—Obligations and incidental powers of authorised

officers 241 151 Authorised officer must produce identity card on request ............. 241 152 Consent .......................................................................................... 241 153 Announcement before entry .......................................................... 241 154 Details of monitoring warrant to be given to occupier etc.

before entry.................................................................................... 242 155 Use of electronic equipment in exercising monitoring powers ...... 242 156 Compensation for damage to electronic equipment ....................... 244

Division 5—Occupier’s rights and responsibilities 245 157 Occupier entitled to be present during execution of

monitoring warrant ........................................................................ 245 158 Occupier to provide authorised officer with facilities and

assistance ....................................................................................... 245

Division 6—Monitoring warrants 246 159 Monitoring warrants ...................................................................... 246 160 Magistrates—personal capacity ..................................................... 247

Division 7—External audits 248 161 External audits—risk management etc. ......................................... 248 162 External audits—compliance ......................................................... 250 163 External auditor may have regard to the results of previous

audit ............................................................................................... 252 164 External auditors ............................................................................ 252 164A Review of decisions ....................................................................... 253

Division 8—Money laundering and terrorism financing risk

assessments 254 165 Money laundering and terrorism financing risk assessments ......... 254

Part 14—Information-gathering powers 256 166 Simplified outline .......................................................................... 256 167 Authorised officer may obtain information and documents ........... 256 168 Copying documents—reasonable compensation ........................... 257 169 Self-incrimination .......................................................................... 257 170 Copies of documents ..................................................................... 258


xii Anti-Money Laundering and Counter-Terrorism Financing Act 2006

171 Authorised officer may retain documents ...................................... 258 172 Division 400 and Chapter 5 of the Criminal Code ........................ 258

Part 15—Enforcement 259


Division 2—Civil penalties 260 174 Ancillary contravention of civil penalty provision ........................ 260 175 Civil penalty orders ....................................................................... 260 176 Who may apply for a civil penalty order ....................................... 262 177 2 or more proceedings may be heard together ............................... 262 178 Time limit for application for an order .......................................... 262 179 Civil evidence and procedure rules for civil penalty orders ........... 262 180 Civil proceedings after criminal proceedings ................................ 262 181 Criminal proceedings during civil proceedings ............................. 262 182 Criminal proceedings after civil proceedings ................................ 263 183 Evidence given in proceedings for penalty not admissible in

criminal proceedings ..................................................................... 263

Division 3—Infringement notices for certain contraventions 264 184 When an infringement notice can be given .................................... 264 185 Matters to be included in an infringement notice........................... 264 186 Amount of penalty—breaches of subsection 53(3) or 59(4) .......... 265 186A Amount of penalty—breaches of certain provisions of Part 6

or Part 3A ...................................................................................... 266 187 Withdrawal of an infringement notice ........................................... 267 188 What happens if the penalty is paid ............................................... 267 189 Effect of this Division on criminal and civil proceedings .............. 268

Division 4—Monitoring of compliance 269 190 Monitoring of compliance ............................................................. 269

Division 5—Remedial directions 270 191 Remedial directions ....................................................................... 270 191A Review of decisions ....................................................................... 270

Division 6—Injunctions 272 192 Injunctions ..................................................................................... 272 193 Interim injunctions......................................................................... 272 194 Discharge etc. of injunctions ......................................................... 273 195 Certain limits on granting injunctions not to apply ........................ 273 196 Other powers of the Federal Court unaffected ............................... 274

Division 7—Enforceable undertakings 275 197 Acceptance of undertakings ........................................................... 275 198 Enforcement of undertakings ......................................................... 276


Anti-Money Laundering and Counter-Terrorism Financing Act 2006 xiii

Division 8—Powers of questioning, search and arrest in relation

to cross-border movements of physical currency

and bearer negotiable instruments 277 199 Questioning and search powers in relation to physical

currency ......................................................................................... 277 200 Questioning and search powers in relation to bearer

negotiable instruments ................................................................... 280 201 Arrest without warrant ................................................................... 285

Division 9—Notices to reporting entities 286 202 Notices to reporting entities ........................................................... 286 203 Contents of notices to reporting entities ........................................ 287 204 Breaching a notice requirement ..................................................... 287 205 Self-incrimination .......................................................................... 288 206 Division 400 and Chapter 5 of the Criminal Code ........................ 288 207 Disclosing existence or nature of notice ........................................ 288

Part 16—Administration 290


Division 2—Establishment and function of AUSTRAC 291 209 Establishment of AUSTRAC ......................................................... 291 210 Function of AUSTRAC ................................................................. 291

Division 3—Chief Executive Officer of AUSTRAC 292

Subdivision A—Office and functions of the AUSTRAC CEO 292 211 AUSTRAC CEO ........................................................................... 292 212 Functions of the AUSTRAC CEO ................................................. 292 213 Policy principles ............................................................................ 294

Subdivision B—Appointment of the AUSTRAC CEO etc. 294 214 Appointment of the AUSTRAC CEO etc. ..................................... 294 215 Remuneration and allowances of the AUSTRAC CEO ................. 295 216 Leave of absence of the AUSTRAC CEO ..................................... 295 217 Resignation of the AUSTRAC CEO ............................................. 295 218 Notification of possible conflict of interest by the

AUSTRAC CEO ........................................................................... 295 219 Termination of the AUSTRAC CEO’s appointment ..................... 296 220 Other terms and conditions ............................................................ 297 221 Acting appointments ...................................................................... 297 222 Delegation by the AUSTRAC CEO .............................................. 297 223 Secretary may require the AUSTRAC CEO to give

information .................................................................................... 298

Division 4—Staff of AUSTRAC etc. 299 224 Staff of AUSTRAC ....................................................................... 299


xiv Anti-Money Laundering and Counter-Terrorism Financing Act 2006

225 Consultants and persons seconded to AUSTRAC ......................... 299

Division 5—Reports and information 300 226 Annual report ................................................................................. 300 227 Minister may require the AUSTRAC CEO to prepare reports

or give information ........................................................................ 300

Division 6—Directions by Minister 301 228 Directions by Minister ................................................................... 301

Division 7—AML/CTF Rules 302 229 AML/CTF Rules ............................................................................ 302

Part 17—Vicarious liability 303 230 Simplified outline .......................................................................... 303 231 Criminal liability of corporations .................................................. 303 232 Civil liability of corporations......................................................... 303 233 Liability of persons other than corporations .................................. 304

Part 18—Miscellaneous 305 234 Simplified outline .......................................................................... 305 235 Protection from liability................................................................. 306 236 Defence of taking reasonable precautions, and exercising due

diligence, to avoid a contravention ................................................ 306 237 Treatment of partnerships .............................................................. 307 238 Treatment of unincorporated associations ..................................... 308 239 Treatment of trusts with multiple trustees ..................................... 308 240 Concurrent operation of State and Territory laws .......................... 309 241 Act not to limit other powers ......................................................... 309 242 Law relating to legal professional privilege not affected ............... 309 243 Validity of transactions .................................................................. 309 244 Reports to the AUSTRAC CEO etc. .............................................. 310 245 Arrangements with Governors of States etc. ................................. 310 246 This Act does not limit other information-gathering powers ......... 311 247 General exemptions ....................................................................... 311 248 Exemptions and modifications by the AUSTRAC CEO ............... 312 249 Specification by class .................................................................... 313 250 Schedule 1 (alternative constitutional basis) .................................. 313 251 Review of operation of Act ........................................................... 313 252 Regulations .................................................................................... 313

Schedule 1—Alternative constitutional basis 315 1 Alternative constitutional basis ...................................................... 315

Notes 319


Anti-Money Laundering and Counter-Terrorism Financing Act 2006 1

An Act to combat money laundering and the

financing of terrorism, and for other purposes

Part 1—Introduction

1 Short title [see Note 1]

This Act may be cited as the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1 Column 2 Column 3

Provision(s) Commencement Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

12 December

2006

2. Sections 3 to

26

The day after this Act receives the Royal

Assent.

13 December

2006

3. Part 2,

Divisions 1 to 5

The first day after the end of the period of 12

months beginning on the day on which this

Act receives the Royal Assent.

12 December

2007

4. Part 2,

Division 6




12 December

2008

5. Part 2,

Division 7




12 December

2007


Part 1 Introduction

Section 2

2 Anti-Money Laundering and Counter-Terrorism Financing Act 2006




6. Part 3,

Divisions 1 to 4




12 December

2008

7. Part 3,

Division 5




12 June 2007

8. Part 3,

Division 6




12 December

2008

9. Parts 4, 5 and

6


Assent.

13 December

2006

10. Part 7 The first day after the end of the period of 12



12 December

2007

11. Part 8 The first day after the end of the period of 6



12 June 2007

12. Part 9 The day after this Act receives the Royal

Assent.

13 December

2006

13. Part 10,

Divisions 1 and 2


Assent.

13 December

2006

14. Part 10,

Division 3




12 December

2007

15. Part 10,

Division 4


Assent.

13 December

2006

16. Part 10,

Division 5




12 December

2007

17. Part 10,

Division 6




12 June 2007

18. Part 10,

Division 7


Assent.

13 December

2006

19. Parts 11 to 18 The day after this Act receives the Royal

Assent.

13 December

2006


Introduction Part 1

Section 3





20. Schedule 1 The day after this Act receives the Royal

Assent.

13 December

2006

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Objects

(1) The objects of this Act include:

(a) to fulfil Australia’s international obligations, including:

(i) Australia’s international obligations to combat money

laundering; and

(ii) Australia’s international obligations to combat financing

of terrorism; and

(b) to address matters of international concern, including:

(i) the need to combat money laundering; and

(ii) the need to combat financing of terrorism; and

(c) by addressing those matters of international concern, to affect

beneficially Australia’s relations with:

(i) foreign countries; and

(ii) international organisations.

Note 1: The objects of this Act are achieved by (among other things) requiring information to be given to the AUSTRAC CEO and by allowing certain other agencies to access information collected by the AUSTRAC CEO.

Note 2: The objects mentioned in paragraphs (1)(a),(b) and (c) relate to the external affairs power. Schedule 1 (alternative constitutional basis) contains provisions designed to attract other legislative powers (including the taxation power).

(2) Relevant international obligations include obligations under the

following:

(a) the United Nations Convention Against Corruption, done at

New York on 31 October 2003 [2006] ATS 2;


Part 1 Introduction

Section 3


(b) the United Nations Convention Against Transnational

Organized Crime, done at New York on 15 November 2000

[2004] ATS 12;

(c) the Convention on Laundering, Search, Seizure and

Confiscation of the Proceeds of Crime, done at Strasbourg on

8 November 1990 [1997] ATS 21;

(d) United Nations Security Council Resolution 1267

S/RES/1267 (1999);

(e) United Nations Security Council Resolution 1373

S/RES/1373 (2001);

(f) United Nations Security Council Resolution 1617

S/RES/1617 (2005).

(3) The following reflect international concern:

(a) the FATF Recommendations;

(b) the United Nations Convention Against Corruption, done at

New York on 31 October 2003 [2006] ATS 2;

(c) the United Nations Convention Against Transnational

Organized Crime, done at New York on 15 November 2000

[2004] ATS 12;

(d) the Convention on Laundering, Search, Seizure and

Confiscation of the Proceeds of Crime, done at Strasbourg on

8 November 1990 [1997] ATS 21;

(e) the International Convention for the Suppression of the

Financing of Terrorism, done at New York on 9 December

1999 [2002] ATS 23;

(f) United Nations General Assembly Resolution 51/210

A/RES/51/210 (1996);

(g) United Nations Security Council Resolution 1267

S/RES/1267 (1999);

(h) United Nations Security Council Resolution 1269

S/RES/1269 (1999);

(i) United Nations Security Council Resolution 1373

S/RES/1373 (2001);

(j) United Nations Security Council Resolution 1456

S/RES/1456 (2003);

(k) United Nations Security Council Resolution 1617

S/RES/1617 (2005).

Note 1: FATF Recommendations is defined in section 5.


Introduction Part 1

Section 4


Note 2: In 2006, the text of international agreements in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Note 3: In 2006, the text of United Nations Security Council resolutions and United Nations General Assembly resolutions was accessible through the United Nations website (www.un.org).

4 Simplified outline

The following is a simplified outline of this Act:

• A reporting entity is a financial institution, or other person,

who provides designated services. (Designated services are

listed in section 6.)

• A reporting entity must carry out a procedure to verify a

customer’s identity before providing a designated service to

the customer. However, in special cases, the procedure may be

carried out after the provision of the designated service.

• Certain pre-commencement customers are subject to modified

identification procedures.

• Certain low-risk services are subject to modified identification

procedures.

• Reporting entities must report the following to the Chief

Executive Officer of AUSTRAC (the Australian Transaction

Reports and Analysis Centre):

(a) suspicious matters;

(b) certain transactions above a threshold.

• Certain international funds transfer instructions must be

reported to the AUSTRAC CEO.

• Cross-border movements of physical currency must be

reported to the AUSTRAC CEO, a customs officer or a police

officer if the total amount moved is above a threshold.


Part 1 Introduction

Section 5


• Cross-border movements of bearer negotiable instruments

must be reported to the AUSTRAC CEO, a customs officer or

a police officer if a customs officer or a police officer requires

a person to make such a report.

• Electronic funds transfer instructions must include certain

information about the origin of the transferred money.

• Providers of registrable designated remittance services or

registrable remittance network services must be registered

with the AUSTRAC CEO.

• Reporting entities must have and comply with anti-money

laundering and counter-terrorism financing programs.

• Financial institutions are subject to restrictions in connection

with entering into correspondent banking relationships.

5 Definitions

In this Act:

AAT reviewable decision means a reviewable decision:

(a) made by the AUSTRAC CEO personally; or

(b) made under subsection 75R(6).

account includes:

(a) a credit card account; and

(b) a loan account (other than a credit card account); and

(c) an account of money held in the form of units in:

(i) a cash management trust; or

(ii) a trust of a kind prescribed by the AML/CTF Rules.

To avoid doubt, it is immaterial whether:

(d) an account has a nil balance; or

(e) any transactions have been allowed in relation to an account.

account provider: if an account is with a person, the person is the

account provider for the account.


Introduction Part 1

Section 5


acquiring: in determining whether something is a designated

service, acquiring includes anything that, under the regulations, is

taken to be acquiring for the purposes of this definition.

ADI (short for authorised deposit-taking institution) means:

(a) a body corporate that is an ADI for the purposes of the

Banking Act 1959; or

(b) the Reserve Bank of Australia; or

(c) a person who carries on State banking within the meaning of

paragraph 51(xiii) of the Constitution.

AFP member (short for Australian Federal Police member) means

a member or special member of the Australian Federal Police.

agency:

(a) a Department of the Commonwealth is taken to be an agency

of the Commonwealth for the purposes of this Act;

(b) a Department of a State is taken to be an agency of the State

for the purposes of this Act;

(c) a Department of a Territory is taken to be an agency of the

Territory for the purposes of this Act.

allowing a transaction: in determining whether a person has

allowed a transaction, it is immaterial whether the person was

obliged to allow the transaction.

AML/CTF Rules (short for Anti-Money

Laundering/Counter-Terrorism Financing Rules) means the rules

made under section 229.

anti-money laundering and counter-terrorism financing program has the meaning given by section 83.

applicable customer identification procedure: for the purposes of

the application of this Act to customers of a reporting entity,

applicable customer identification procedure has the meaning

ascertained in accordance with:

(a) if all of the designated services provided by the reporting

entity are covered by item 54 of table 1 in section 6, and

there is no joint anti-money laundering and counter-terrorism

financing program that applies to, and has been adopted by,

the reporting entity:


Part 1 Introduction

Section 5


(i) a special anti-money laundering and counter-terrorism

financing program that applies to, and has been adopted

by, the reporting entity; or

(ii) if the program has been varied on one or more

occasions—the program as varied; or

(b) in any other case:

(i) Part B of an anti-money laundering and

counter-terrorism financing program that applies to, and

has been adopted by, the reporting entity; or


occasions—Part B of the program as varied.

Note: Item 54 of table 1 in section 6 covers a holder of an Australian financial services licence who arranges for a person to receive a designated service.

approved means approved by the AUSTRAC CEO, in writing, for

the purposes of the provision in which the term occurs.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

approved deposit fund has the same meaning as in the

Superannuation Industry (Supervision) Act 1993.

approved third-party bill payment system means a bill payment

system prescribed by the AML/CTF Rules.

arrangement includes:

(a) any agreement, arrangement, understanding, promise or

undertaking, whether express or implied, and whether or not

enforceable, or intended to be enforceable, by legal

proceedings; and

(b) any scheme, plan, proposal, action, course of action or course

of conduct, whether unilateral or otherwise.

ASIO means the Australian Security Intelligence Organisation.

ASIO Minister means the Minister responsible for administering

the Australian Security Intelligence Organisation Act 1979.

ASIO official means:

(a) the Director-General of Security; or

(b) a person employed under paragraph 84(1)(a) or (b) of the

Australian Security Intelligence Organisation Act 1979.


Introduction Part 1

Section 5


ASIS means the Australian Secret Intelligence Service.

ASIS Minister means the Minister responsible for administering so

much of the Intelligence Services Act 2001 as relates to ASIS.

ASIS official means:

(a) the Director-General of ASIS; or

(b) a person employed under subsection 33(1) of the Intelligence

Services Act 2001; or

(c) a person engaged under subsection 34(1) of the Intelligence

Services Act 2001.

For the purposes of this Act, a person covered by paragraph (c) is

taken to be an employee of ASIS.

assessment, in relation to an individual, means an assessment

prepared or provided by a credit reporting agency under paragraph

35B(1)(a) in relation to the individual.

AUSTRAC means the Australian Transaction Reports and Analysis

Centre continued in existence by section 209.

AUSTRAC CEO means the Chief Executive Officer of

AUSTRAC.

AUSTRAC information means:

(a) eligible collected information; or

(b) a compilation by the AUSTRAC CEO of eligible collected

information; or

(c) an analysis by the AUSTRAC CEO of eligible collected

information.

Australia, when used in a geographical sense, includes the external

Territories.

Australian account means an account held in Australia.

Australian carbon credit unit has the same meaning as in the

Carbon Credits (Carbon Farming Initiative) Act 2011.

Australian Commission for Law Enforcement Integrity officer means a staff member (as defined by section 11 of the Law

Enforcement Integrity Commissioner Act 2006) of the Australian

Commission for Law Enforcement Integrity.


Part 1 Introduction

Section 5


Australian financial services licence has the same meaning as in

Chapter 7 of the Corporations Act 2001.

Australian government body means:

(a) the Commonwealth, a State or a Territory; or

(b) an agency or authority of:

(i) the Commonwealth; or

(ii) a State; or

(iii) a Territory.

authorised officer means:

(a) the AUSTRAC CEO; or

(b) a person for whom an appointment as an authorised officer is

in force under section 145.

batched electronic funds transfer instruction means an electronic

funds transfer instruction accepted by an ADI or a bank from a

particular payer, where:

(a) the transfer instruction is one of a particular batch of

electronic funds transfer instructions accepted by the ADI or

bank from the payer; and

(b) the batch is, or is to be, passed on or dispatched in a single

file that includes the complete payer information in respect of

each of the electronic funds transfer instructions in the batch.

bearer negotiable instrument has the meaning given by section 17.

beneficiary institution, in relation to an electronic funds transfer

instruction:

(a) in the case of a multiple-institution person-to-person

electronic funds transfer instruction—has the meaning given

by subsection 8(1); or

(b) in the case of a same-institution person-to-person electronic

funds transfer instruction—has the meaning given by

subsection 8(2); or

(c) in the case of a multiple-institution same-person electronic


subsection 9(1); or

(d) in the case of a same-institution same-person electronic funds

transfer instruction—has the meaning given by subsection

9(2).


Introduction Part 1

Section 5


bet includes wager.

bill of exchange has the same meaning as in paragraph 51(xvi) of

the Constitution, but does not include a cheque unless the cheque is

a cheque that an ADI, bank or other institution draws on itself.

borrow has a meaning corresponding to loan.

building society includes a society registered or incorporated as a

co-operative housing society or similar society under:

(a) a law of a State or Territory; or

(b) a law of a foreign country or a part of a foreign country.

bullion includes anything that, under the regulations, is taken to be

bullion for the purposes of this Act.

business includes a venture or concern in trade or commerce,

whether or not conducted on a regular, repetitive or continuous

basis.

business day means a day other than a Saturday, a Sunday or a

public or bank holiday in the place concerned.

civil penalty order means an order under section 175.

civil penalty provision means a provision declared by this Act to

be a civil penalty provision.

commence to provide a designated service means:

(a) if the designated service is provided at an instant of time—

provide the service; or

(b) if the designated service is provided over a period of time—

begin to provide the service.

commercial goods carrier means a person who, in the normal

course of a business, carries goods or mail for reward.

commercial passenger carrier means a person who, in the normal

course of a business, carries passengers for reward.

Commonwealth place means:

(a) a Commonwealth place within the meaning of the

Commonwealth Places (Application of Laws) Act 1970; or


Part 1 Introduction

Section 5


(b) a place in a Territory, where the place is owned by the

Commonwealth.

Commonwealth Royal Commission means a Royal Commission

within the meaning of the Royal Commissions Act 1902.

company has the same meaning as in the Income Tax Assessment

Act 1997.

Note: Under the Income Tax Assessment Act 1997, company includes an unincorporated association or body of persons.

complete payer information has the meaning given by section 71.

compliance record of a reporting entity means:

(a) a record that relates to the obligations under this Act, the

regulations or the AML/CTF Rules of the reporting entity; or

(b) a record, copy or extract retained under Part 10 by the

reporting entity.

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

contribution:

(a) in relation to an FHSA—has the same meaning as in the First

Home Saver Accounts Act 2008; or

(b) in relation to an RSA—has the same meaning as in the

Retirement Savings Accounts Act 1997.

controller of an eligible gaming machine venue has the meaning

given by section 13.

control test: passing the control test has the meaning given by

section 11.

correspondent banking relationship means a relationship that

involves the provision by a financial institution (the first financial

institution) of banking services to another financial institution,

where:

(a) the first financial institution carries on an activity or business

at or through a permanent establishment of the financial

institution in a particular country; and

(b) the other financial institution carries on an activity or

business at or through a permanent establishment of the other

financial institution in another country; and


Introduction Part 1

Section 5


(c) the correspondent banking relationship relates, in whole or in

part, to those permanent establishments; and

(d) the relationship is not of a kind specified in the AML/CTF

Rules; and

(e) the banking services are not of a kind specified in the

AML/CTF Rules.

For this purpose, banking service includes anything that, under the

AML/CTF Rules, is taken to be a banking service for the purposes

of this definition.

Note: For geographical links, see section 100.

country means Australia or a foreign country.

credit card has the same meaning as in Schedule 2 to the

Competition and Consumer Act 2010.

credit information file has the same meaning as in the Privacy Act

1988.

credit reporting agency has the same meaning as in the Privacy

Act 1988.

custodial or depository service: see the definition of providing a

custodial or depository service.

customer has the meaning given by section 6, and includes a

prospective customer.

customs officer means:

(a) the Chief Executive Officer of Customs; or

(b) an officer of customs within the meaning of the Customs Act

1901.

damage, in relation to data, includes damage by erasure of data or

addition of other data.

data includes:

(a) information in any form; or

(b) any program (or part of a program).

data storage device means a thing containing, or designed to

contain, data for use by a computer.


Part 1 Introduction

Section 5


debit card has the same meaning as in Schedule 2 to the

Competition and Consumer Act 2010.

debit card account: if a debit card enables the holder of an account

to debit the account, the account is a debit card account.

Defence Department means the Department administered by the

Defence Minister.

defence intelligence agency means DIGO, DIO or DSD.

Defence Minister means the Minister responsible for administering

the Defence Act 1903.

Department of Foreign Affairs and Trade means the Department

administered by the Foreign Affairs Minister.

derivative has the same meaning as in Chapter 7 of the

Corporations Act 2001.

designated agency means:

(a) the Australian Crime Commission; or

(b) ASIO; or

(c) the Australian Commission for Law Enforcement Integrity;

or

(d) the Australian Competition and Consumer Commission; or

(e) Customs; or

(f) the Australian Federal Police; or

(g) the Australian Prudential Regulation Authority; or

(ga) ASIS; or

(gb) DIGO; or

(gc) DIO; or

(gd) DSD; or

(ge) ONA; or

(h) the Australian Securities and Investments Commission; or

(i) the Human Services Department; or

(k) a Commonwealth Royal Commission whose terms of

reference include inquiry into whether unlawful conduct

(however described) has, or might have, occurred; or

(ka) the Department of Foreign Affairs and Trade; or

(l) the Immigration Department; or


Introduction Part 1

Section 5


(m) IGIS; or

(n) the Treasury Department; or

(o) an authority or agency of the Commonwealth, where the

authority or agency is specified in the regulations; or

(p) the police force or police service of a State or the Northern

Territory; or

(q) the New South Wales Crime Commission; or

(r) the Independent Commission Against Corruption of New

South Wales; or

(s) the Police Integrity Commission of New South Wales; or

(t) the Crime and Misconduct Commission of Queensland; or

(u) the Corruption and Crime Commission of Western Australia;

or

(v) an authority or agency of a State or Territory, where the

authority or agency has the responsibility of collecting or

receiving taxation revenue of the State or Territory; or

(w) a State/Territory Royal Commission:

(i) whose terms of reference include inquiry into whether

unlawful conduct (however described) has, or might

have, occurred; and

(ii) that is specified in the regulations; or

(x) an authority or agency of a State or Territory, where the

authority or agency is specified in the regulations.

designated business group means a group of 2 or more persons,

where:

(a) each member of the group has elected, in writing, to be a

member of the group, and the election is in force; and

(b) each election was made in accordance with the AML/CTF

Rules; and

(c) no member of the group is a member of another designated

business group; and

(d) each member of the group satisfies such conditions (if any)

as are specified in the AML/CTF Rules; and

(e) the group is not of a kind that, under the AML/CTF Rules, is

ineligible to be a designated business group.

designated remittance arrangement has the meaning given by

section 10.


Part 1 Introduction

Section 5


designated service has the meaning given by section 6.

DIGO means that part of the Department of Defence known as the

Defence Imagery and Geospatial Organisation, and includes any

part of the Defence Force that performs functions on behalf of that

part of the Department.

DIO means that part of the Department of Defence known as the

Defence Intelligence Organisation, and includes any part of the

Defence Force that performs functions on behalf of that part of the

Department.

director of a company includes a member of a body corporate

incorporated for a public purpose by a law of the Commonwealth,

a State or a Territory.

Director-General of Security means the Director-General of

Security holding office under the Australian Security Intelligence

Organisation Act 1979.

disclose means divulge or communicate.

disposing of: in determining whether something is a designated

service, disposing of includes anything that, under the regulations,

is taken to be disposing of for the purposes of this definition.

DSD means that part of the Department of Defence known as the

Defence Signals Directorate, and includes any part of the Defence

Force that performs functions on behalf of that part of the

Department.

e-currency means an internet-based, electronic means of exchange

that is:

(a) known as any of the following:

(i) e-currency;

(ii) e-money;

(iii) digital currency;

(iv) a name specified in the AML/CTF Rules; and

(b) backed either directly or indirectly by:

(i) precious metal; or

(ii) bullion; or

(iii) a thing of a kind prescribed by the AML/CTF Rules;

and


Introduction Part 1

Section 5


(c) not issued by or under the authority of a government body;

and includes anything that, under the regulations, is taken to be

e-currency for the purposes of this Act.

electronic communication has the same meaning as in the

Criminal Code.

electronic funds transfer instruction means:

(a) a multiple-institution person-to-person electronic funds

transfer instruction; or

(b) a same-institution person-to-person electronic funds transfer

instruction; or

(c) a multiple-institution same-person electronic funds transfer

instruction; or

(d) a same-institution same-person electronic funds transfer

instruction.

eligible collected information means:

(a) information obtained by the AUSTRAC CEO under:

(i) this Act; or

(ii) any other law of the Commonwealth; or

(iii) a law of a State or Territory; or

(b) information obtained by the AUSTRAC CEO from a

government body; or

(c) information obtained by an authorised officer under Part 13,

14 or 15;

and includes FTR information (within the meaning of the

Financial Transaction Reports Act 1988).

eligible gaming machine venue has the meaning given by

section 13.

eligible international emissions unit has the same meaning as in

the Australian National Registry of Emissions Units Act 2011.

eligible place means:

(a) a place for the examination of goods on landing, where the

place is appointed under section 17 of the Customs Act 1901;

or


Part 1 Introduction

Section 5


(b) a warehouse in respect of which a warehouse licence (within

the meaning of Part V of the Customs Act 1901) is in force;

or

(c) a port, airport, wharf or boarding station appointed under

section 15 of the Customs Act 1901.

embarkation area means a section 234AA place within the

meaning of the Customs Act 1901.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

enrolment details, in relation to a person, means such information

relating to the person as is specified in the AML/CTF Rules.

evidential burden, in relation to a matter, means the burden of

adducing or pointing to evidence that suggests a reasonable

possibility that the matter exists or does not exist.

examiner of the Australian Crime Commission means an

examiner within the meaning of the Australian Crime Commission

Act 2002.

exempt financial market operator issue of a security or derivative

means the making available of the security or derivative, by the

operator of a financial market (within the meaning of Chapter 7 of

the Corporations Act 2001), in the course of operating the financial

market.

exempt legal practitioner service means a service that, under the

AML/CTF Rules, is taken to be an exempt legal practitioner

service for the purposes of this Act.

external auditor means a person authorised under section 164 to be

an external auditor for the purposes of this Act.

factoring includes anything that, under the regulations, is taken to

be factoring for the purposes of this Act.

false customer name means a name other than a name by which

the customer is commonly known.

FATF Recommendations (short for Financial Action Task Force

Recommendations) means:


Introduction Part 1

Section 5


(a) all of the following Recommendations:

(i) the Forty Recommendations adopted by the Financial

Action Task Force on Money Laundering (FATF) at its

plenary meeting on 20 June 2003;

(ii) the Special Recommendations on Terrorist Financing

adopted by the Financial Action Task Force on Money

Laundering (FATF) at its special plenary meeting on

31 October 2001;

(iii) Special Recommendation IX on Terrorist Financing

adopted by the Financial Action Task Force on Money

Laundering (FATF) at its plenary meeting on

20-22 October 2004; or

(b) if any or all of those Recommendations are amended—the

Recommendations as so amended.

Note: In 2006, the text of the FATF Recommendations was available on the FATF website (www.fatf-gafi.org).

Federal Court means the Federal Court of Australia.

FHSA (short for first home saver account) has the same meaning

as in the First Home Saver Accounts Act 2008.

FHSA provider (short for first home saver account provider) has

the same meaning as in the First Home Saver Accounts Act 2008.

financial institution means:

(a) an ADI; or

(b) a bank; or

(c) a building society; or

(d) a credit union; or

(e) a person specified in the AML/CTF Rules.

financing of terrorism means conduct that amounts to:

(a) an offence against section 102.6 or Division 103 of the

Criminal Code; or

(b) an offence against section 20 or 21 of the Charter of the

United Nations Act 1945; or

(c) an offence against a law of a State or Territory that

corresponds to an offence referred to in paragraph (a) or (b);

or


Part 1 Introduction

Section 5


(d) an offence against a law of a foreign country or a part of a

foreign country that corresponds to an offence referred to in

paragraph (a) or (b).

Foreign Affairs Minister means the Minister responsible for

administering the Diplomatic Privileges and Immunities Act 1967.

foreign country includes a region where:

(a) the region is a colony, territory or protectorate of a foreign

country; or

(b) the region is part of a foreign country; or

(c) the region is under the protection of a foreign country; or

(d) a foreign country exercises jurisdiction or control over the

region; or

(e) a foreign country is responsible for the region’s international

relations.

foreign exchange contract means a contract:

(a) to buy or sell currency (whether Australian or not); or

(b) to exchange one currency (whether Australian or not) for

another (whether Australian or not).

foreign intelligence agency means a government body that has

responsibility for:

(a) intelligence gathering for a foreign country; or

(b) the security of a foreign country.

foreign law enforcement agency means a government body that

has responsibility for law enforcement in a foreign country or a

part of a foreign country.

funds transfer chain has the meaning given by subsection 64(2).

game includes an electronic game, but does not include a lottery.

gaming chip or token means a chip or token for playing a game,

where:

(a) the game is played for money or anything else of value; and

(b) the game is a game of chance or of mixed chance and skill.

gaming machine means a machine for playing a game, where:

(a) the game is played for money or anything else of value; and

(b) the game is a game of chance or of mixed chance and skill.


Introduction Part 1

Section 5


government body means:

(a) the government of a country; or

(b) an agency or authority of the government of a country; or

(c) the government of part of a country; or

(d) an agency or authority of the government of part of a

country.

guarantee includes anything that, under the regulations, is taken to

be a guarantee for the purposes of this Act.

Human Services Department means the Department administered

by the Human Services Minister.

Human Services Minister means the Minister administering the

Human Services (Centrelink) Act 1997.

IGIS (short for Inspector-General of Intelligence and Security)

means the agency consisting of:

(a) the Inspector-General of Intelligence and Security; and

(b) the APS employees assisting the Inspector-General of

Intelligence and Security.

IGIS official (short for Inspector-General of Intelligence and

Security official) means:

(a) the Inspector-General of Intelligence and Security; or

(b) any other person covered by subsection 32(1) of the

Inspector-General of Intelligence and Security Act 1986.

Immigration Department means the Department responsible for

the administration of the Migration Act 1958.

incorporated includes formed. This definition does not apply to the

expression unincorporated.

information obtained includes information obtained as a result of

the production of a document.

infringement notice means an infringement notice under

section 184.

infringement notice provision has the meaning given by

subsection 184(1A).


Part 1 Introduction

Section 5


Inter-Governmental Committee means the Inter-Governmental

Committee mentioned in section 8 of the Australian Crime

Commission Act 2002.

international funds transfer instruction has the meaning given by

section 46.

investigating officer means:

(a) a taxation officer; or

(b) an AFP member; or

(c) a customs officer (other than the Chief Executive Officer of

Customs); or

(d) an examiner of the Australian Crime Commission; or

(e) a member of the staff of the Australian Crime Commission.

involves includes relates to.

issue, when used in relation to a security or derivative, includes

grant or otherwise make available. The time when a derivative is

issued is to be worked out under subsection 761E(3) of the

Corporations Act 2001.

joint anti-money laundering and counter-terrorism financing

program has the meaning given by subsection 85(1).

lease, when used in relation to goods, includes hire.

life policy means a life policy (within the meaning of the Life

Insurance Act 1995), but does not include:

(a) a policy for which there is no prescribed minimum surrender

value (other than that which may be provided for in the

policy documentation and promotional material); or

(b) a regular premium policy to which paragraph (a) does not

apply, where the amount, or the total of the amounts, payable

by way of premium each year is not more than:

(i) $1,500; or

(ii) if a greater amount is specified in the AML/CTF

Rules—that greater amount; or

(c) a single premium policy to which paragraph (a) does not

apply, where the amount of the single premium is not more

than:

(i) $3,000; or


Introduction Part 1

Section 5


(ii) if a greater amount is specified in the AML/CTF

Rules—that greater amount; or

(d) a contract of consumer credit insurance (within the meaning

of the Insurance Contracts Act 1984).

For the purposes of this definition, the question of whether a policy

has a prescribed minimum surrender value is to be determined in

accordance with prudential standards made under section 230A of

the Life Insurance Act 1995 as in force from time to time.

loan includes:

(a) an advance of money; and

(b) the provision of credit or any other form of financial

accommodation; and

(c) the payment of an amount for, on account of, on behalf of or

at the request of a person where there is an obligation

(whether expressed or implied) to repay the amount; and

(d) a transaction (whatever its terms or form) which in substance

effects a loan of money;

but does not include:

(e) if goods (within the meaning of the Competition and

Consumer Act 2010) are sold on credit—the provision by the

seller of that credit; or

(f) if services (within the meaning of the Competition and

Consumer Act 2010) are provided on credit—the provision

by the provider of the service of that credit; or

(g) anything that, under the AML/CTF Rules, is taken not to be a

loan for the purposes of this Act.

make available, when used in relation to money, includes reducing

the balance of a loan account.

member of the staff of the Australian Crime Commission has the

same meaning as in the Australian Crime Commission Act 2002.

modifications includes additions, omissions and substitutions.

money includes:

(a) physical currency; and

(b) money held in an account, whether denominated in

Australian currency or any other currency; and


Part 1 Introduction

Section 5


(c) money held on deposit, whether denominated in Australian

currency or any other currency; and

(d) e-currency, however amounts of the e-currency are

expressed.

money laundering means conduct that amounts to:

(a) an offence against Division 400 of the Criminal Code; or

(b) an offence against a law of a State or Territory that

corresponds to an offence referred to in paragraph (a); or

(c) an offence against a law of a foreign country or of a part of a

foreign country that corresponds to an offence referred to in

paragraph (a).

money laundering and terrorism financing risk assessment has

the meaning given by subsection 165(6).

monitoring powers has the meaning given by section 148.

monitoring warrant means a warrant issued under section 159.

move physical currency into Australia has the meaning given by

section 58.

move physical currency out of Australia has the meaning given by

section 57.

multiple-institution person-to-person electronic funds transfer

instruction has the meaning given by subsection 8(1).

multiple-institution same-person electronic funds transfer


non-designated Commonwealth agency means an authority or

agency of the Commonwealth that is not a designated agency.

non-financier means a person who is not:

(a) an ADI; or

(b) a bank; or



(e) a person specified in the AML/CTF Rules.

non-reportable cross-border movement of physical currency means:


Introduction Part 1

Section 5


(a) a movement of physical currency out of Australia; or

(b) a movement of physical currency into Australia;

for which a report under section 53 is not required.

non-reportable transaction: if:

(a) a reporting entity commences to provide, or provides, a

designated service to a customer; and

(b) the provision of the service involves a transaction; and

(c) the transaction is not a threshold transaction;

the transaction is a non-reportable transaction.

offence:

(a) a reference in this Act to an offence against a law of the

Commonwealth (including this Act) includes a reference to

an offence against section 6 of the Crimes Act 1914 that

relates to such an offence; and

(b) a reference in this Act to a particular offence includes a

reference to an offence against section 6 of the Crimes Act

1914 that relates to that particular offence.

Note: For other ancillary offences, see section 11.6 of the Criminal Code.

officer:

(a) a director or secretary of a company is taken to be an officer

of the company for the purposes of this Act;

(b) a partner of a partnership is taken to be an officer of the

partnership for the purposes of this Act;

(c) a trustee or manager of a trust is taken to be an officer of the

trust for the purposes of this Act.

official of a designated agency or a non-designated

Commonwealth agency has the meaning given by section 22.

ONA means the Office of National Assessments established by the

Office of National Assessments Act 1977.

opening, in relation to an account, means creating the account. To

avoid doubt, it is immaterial whether:

(a) the account number has been given to the holder of the

account; or

(b) the holder of the account, or any other signatory to the

account, can conduct a transaction in relation to the account.


Part 1 Introduction

Section 5


ordering institution, in relation to an electronic funds transfer

instruction:






subsection 8(2); or



subsection 9(1); or



9(2).

owner-managed branch of an ADI has the meaning given by

section 12.

partnership has the same meaning as in the Income Tax

Assessment Act 1997.

payee, in relation to an electronic funds transfer instruction:






subsection 8(2); or



subsection 9(1); or



9(2).

payer, in relation to an electronic funds transfer instruction:






subsection 8(2); or


Introduction Part 1

Section 5




subsection 9(1); or



9(2).

penalty unit has the meaning given by section 4AA of the Crimes

Act 1914.

permanent establishment has the meaning given by section 21.

person means any of the following:

(a) an individual;

(b) a company;

(c) a trust;

(d) a partnership;

(e) a corporation sole;

(f) a body politic.

Note: See also sections 237 (partnerships), 238 (unincorporated associations) and 239 (trusts with multiple trustees).

personal information has the same meaning as in the Privacy Act

1988.

physical currency means the coin and printed money (whether of

Australia or of a foreign country) that:

(a) is designated as legal tender; and

(b) circulates as, and is customarily used and accepted as, a

medium of exchange in the country of issue.

police officer means:

(a) an AFP member; or

(b) a member of the police force or police service of a State or

Territory.

precious metal means:

(a) gold; or

(b) silver; or

(c) platinum; or

(d) palladium; or


Part 1 Introduction

Section 5


(e) iridium; or

(f) osmium; or

(g) rhodium; or

(h) a metal specified in the regulations; or

(i) any alloy or other substance containing:

(i) gold; or

(ii) silver; or

(iii) platinum; or

(iv) palladium; or

(v) iridium; or

(vi) osmium; or

(vii) rhodium; or

(viii) a metal specified in the regulations.

prescribed foreign country means a foreign country declared by

the regulations to be a prescribed foreign country for the purposes

of this Act.

printed money means money comprising a note printed, written or

otherwise made on polymer, paper or any other material.

produce includes permit access to.

promissory note has the same meaning as in paragraph 51(xvi) of

the Constitution.

property means any legal or equitable estate or interest in real or

personal property, including a contingent or prospective one, but

does not include money.

provide includes supply, grant or confer.

providing a custodial or depository service includes engaging in

conduct that, under subsection 766E(1) of the Corporations Act

2001, constitutes providing a custodial or depository service within

the meaning of Chapter 7 of that Act, but does not include:

(a) conduct covered by subsection 766E(3) of that Act; or

(b) conduct specified in the AML/CTF Rules.

public official means:

(a) an employee or official of a government body; or


Introduction Part 1

Section 5


(b) an individual who holds or performs the duties of an

appointment, office or position under a law of a country or of

part of a country; or

(c) an individual who holds or performs the duties of an

appointment, office or position created by custom or

convention of a country or of part of a country; or

(d) an individual who is otherwise in the service of a government

body (including service as a member of a military force,

police force or police service); or

(e) a member of the executive, judiciary or magistracy of a

country or of part of a country.

qualified accountant means a person who is a member of:

(a) CPA Australia; or

(b) the Institute of Chartered Accountants in Australia; or

(c) a body specified in the AML/CTF Rules.

receives a designated service: if a reporting entity provides a

designated service to a customer, the customer receives the

designated service from the reporting entity.

registered independent remittance dealer means a person

registered under section 75C as an independent remittance dealer.

registered remittance affiliate, of a registered remittance network

provider, means a person registered under section 75C as a

remittance affiliate of the registered remittance network provider.

registered remittance network provider means a person registered

under section 75C as a remittance network provider.

registrable designated remittance service means a designated

service that:

(a) is covered by item 31 or 32 of table 1 in section 6; and

(b) is provided by a person at or through a permanent

establishment of the person in Australia; and

(c) is not of a kind specified in the AML/CTF Rules.

registrable details, in relation to a person, means such information

relating to the person as is specified in the AML/CTF Rules.

Note: A person’s business name and business address are examples of information that could be specified in the AML/CTF Rules.


Part 1 Introduction

Section 5


registrable remittance network service means a designated service

that:

(a) is covered by item 32A of table 1 in section 6; and

(b) is not of a kind specified in the AML/CTF Rules.

registration, of a person, means registration of the person as any of

the following:

(a) a remittance network provider;

(b) an independent remittance dealer;

(c) a remittance affiliate of a registered remittance network

provider.

remittance arrangement has the meaning given by section 10.

Remittance Sector Register has the meaning given by section 75.

reporting entity means a person who provides a designated service.

reporting entity business premises means:

(a) premises, or a part of premises, used wholly or partly for the

purposes of the business operations of:

(i) a reporting entity; or

(ii) an agent of a reporting entity; or

(b) premises, or a part of premises, used wholly or partly for the

purposes of the storage (whether in electronic form or

otherwise) of records relating to the business operations of:

(i) a reporting entity; or

(ii) an agent of a reporting entity;

where the occupier of the premises, or the part of premises,

carries on a business of storing records at the premises or the

part of premises.

required transfer information has the meaning given by

section 70.

resident of a country has the meaning given by section 14.

reviewable decision, in relation to a person, means any of the

following:

(a) a decision to refuse an application made by the person for

registration as:

(i) a remittance network provider; or


Introduction Part 1

Section 5


(ii) an independent remittance dealer; or

(iii) a remittance affiliate of a registered remittance network

provider;

(b) a decision to refuse an application made by a registered

remittance network provider for registration of the person as

a remittance affiliate of the registered remittance network

provider;

(c) decision that is taken to be made because of the operation of

subsection 75B(6) (which deals with deemed refusal);

(d) a decision to cancel the registration of the person (see

section 75G);

(e) a decision to impose conditions on the registration of the

person;

(f) if the person is a registered remittance network provider—

any of the following:

(i) a decision to refuse to register another person as a

remittance affiliate of the registered remittance network

provider;

(ii) a decision to cancel the registration of another person as

a remittance affiliate of the registered remittance

network provider (see section 75G);

(iii) a decision to impose conditions on the registration of

another person as a remittance affiliate of the registered

remittance network provider.

RSA (short for retirement savings account) has the same meaning

as in the Retirement Savings Accounts Act 1997.

RSA provider (short for retirement savings account provider) has

the same meaning as in the Retirement Savings Accounts Act 1997.

same-institution person-to-person electronic funds transfer


same-institution same-person electronic funds transfer


Secretary means the Secretary of the Department.

security has the meaning given by section 92 of the Corporations

Act 2001 (for this purpose, disregard subsections 92(3) and (4) of

that Act).


Part 1 Introduction

Section 5


Note: Security includes an interest in a managed investment scheme.

self managed superannuation fund has the same meaning as in

the Superannuation Industry (Supervision) Act 1993.

send, in relation to physical currency, includes send through the

post.

service includes anything covered by an item of a table in

section 6.

shell bank has the meaning given by section 15.

signatory, in relation to an account with an account provider,

means the person, or one of the persons, on whose instructions

(whether required to be in writing or not and whether required to

be signed or not) the account provider conducts transactions in

relation to the account.

sinking fund policy has the same meaning as in the Life Insurance

Act 1995.

special anti-money laundering and counter-terrorism financing program has the meaning given by subsection 86(1).

standard anti-money laundering and counter-terrorism financing

program has the meaning given by subsection 84(1).

state of mind of a person includes:

(a) the knowledge, intention, opinion, suspicion, belief or

purpose of the person; and

(b) the person’s reasons for the intention, opinion, belief or

purpose.

State/Territory Royal Commission means:

(a) a Royal Commission of a State or Territory; or

(b) a commission of inquiry of a State or Territory.

stored value card does not include a debit card or credit card but

includes a portable device (other than a debit card or credit card)

that:

(a) is capable of:

(i) storing monetary value in a form other than physical

currency; or


Introduction Part 1

Section 5


(ii) being used to gain access to monetary value stored in

such a form; and

(b) is of a kind prescribed by the regulations.

subject to a requirement includes subject to a prohibition.

subsidiary has the same meaning as in the Corporations Act 2001.

superannuation fund has the same meaning as in the

Superannuation Industry (Supervision) Act 1993.

suspicious matter reporting obligation has the meaning given by

subsection 41(1).

taxation law has the same meaning as in the Taxation

Administration Act 1953.

taxation officer means:

(a) a Second Commissioner of Taxation; or

(b) a Deputy Commissioner of Taxation; or

(c) a person appointed or engaged under the Public Service Act

1999 and performing duties in the Australian Taxation

Office.

threshold transaction means:

(a) a transaction involving the transfer of physical currency,

where the total amount of physical currency transferred is not

less than $10,000; or

(b) a transaction involving the transfer of money in the form of

e-currency, where the total amount of e-currency transferred

is not less than $10,000; or

(c) if:

(i) the regulations provide that this definition applies to a

specified transaction involving money; and

(ii) the regulations provide that a specified amount is the

transaction threshold for the specified transaction;

the specified transaction, where the total amount transferred

is not less than the transaction threshold for the transaction;

or


Part 1 Introduction

Section 5


(d) if:

(i) the regulations provide that this definition applies to a

specified transaction involving the transfer of property;

and

(ii) the regulations provide that a specified amount is the

transaction threshold for the specified transaction;

the specified transaction, where the total value transferred is

not less than the transaction threshold for the transaction.

Paragraphs (a) and (b) do not limit paragraph (c).

Note 1: See also section 18 (translation of foreign currency to Australian currency).

Note 2: See also section 19 (translation of e-currency to Australian currency).

Note 3: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

tracing information has the meaning given by section 72.

transaction includes a transaction of a non-commercial nature.

transfer includes any act or thing, or any series or combination of

acts or things, that may reasonably be regarded as the economic

equivalent of a transfer (for example, debiting an amount from a

person’s account and crediting an equivalent amount to another

person’s account).

transferor entity, in relation to a remittance arrangement, has the

meaning given by paragraph 10(3)(a).

Treasury Department means the Department administered by the

Treasurer.

trust means a person in the capacity of trustee or, as the case

requires, a trust estate.

trustee has the same meaning as in the Income Tax Assessment Act

1997.

trust estate has the same meaning as in the Income Tax Assessment

Act 1997.

ultimate transferee entity, in relation to a remittance arrangement,

has the meaning given by paragraph 10(3)(b).


Introduction Part 1

Section 6


unincorporated association means an unincorporated association

or body of persons.

unique reference number, for an electronic funds transfer

instruction, means a combination of any or all of the following:

(a) letters;

(b) digits;

(c) characters;

(d) symbols;

which distinguishes the transfer instruction in a way that, either:

(e) alone; or

(f) in conjunction with any other information in the transfer

instruction;

enables the ordering institution to identify the payer.

Examples:

(a) a combination of a BSB and account number;

(b) a reference number generated by the ordering institution.

value, in relation to transferred property, means the market value

of the property as at the time of the transfer. In working out the

market value of the property, disregard anything that would

prevent or restrict conversion of the property to money.

verification request, in relation to an individual, means a request

made by a reporting entity under paragraph 35A(1)(b) for an

assessment in relation to the individual.

warrant premises, in relation to a monitoring warrant, means the

premises to which the warrant relates.

6 Designated services

(1) For the purposes of this Act, the following tables define:

(a) the provision of a designated service; and

(b) the person (the customer) to whom the designated service is

provided.


Part 1 Introduction

Section 6


Table 1—Financial services

(2) Table 1 is as follows:


Item Provision of a designated service Customer of the designated service

1 in the capacity of account provider,

opening an account, where the

account provider is:

(a) an ADI; or

(b) a bank; or



(e) a person specified in the

AML/CTF Rules

the holder of the account

2 in the capacity of account provider

for a new or existing account,

allowing a person to become a

signatory to the account, where the


(a) an ADI; or

(b) a bank; or




AML/CTF Rules

the signatory


for an account, allowing a

transaction to be conducted in

relation to the account, where the


(a) an ADI; or

(b) a bank; or




AML/CTF Rules

both:

(a) the holder of the account; and

(b) each other signatory to the

account


Introduction Part 1

Section 6




4 accepting money on deposit

(otherwise than by way of deposit

to an account), where the

deposit-taker is:

(a) an ADI; or

(b) a bank; or




AML/CTF Rules

the person in whose name the deposit

is held

5 in the capacity of deposit-taker for a

deposit, allowing a transaction to be

conducted in relation to the deposit,

where the deposit-taker is:

(a) an ADI; or

(b) a bank; or




AML/CTF Rules

the person in whose name the deposit

is held

6 making a loan, where the loan is

made in the course of carrying on a

loans business

the borrower

7 in the capacity of:

(a) lender for a loan; or

(b) assignee (whether immediate or

otherwise) of the lender for a

loan;

allowing the borrower to conduct a

transaction in relation to the loan,

where the loan was made in the

course of carrying on a loans

business

the borrower

8 factoring a receivable, where the

receivable is factored in the course

of carrying on a factoring business

the person whose receivable is

factored


Part 1 Introduction

Section 6




9 forfaiting:

(a) a bill of exchange; or

(b) a promissory note;

where the bill or note is forfaited in

the course of carrying on a

forfaiting business

the person whose bill or note is

forfaited

10 supplying goods by way of lease

under a finance lease, where:

(a) the goods are not acquired by a

consumer (within the meaning

of section 4B of the Competition

and Consumer Act 2010); and

(b) the supply is in the course of

carrying on a finance leasing

business

the lessee

11 in the capacity of lessor under a

finance lease, allowing the lessee to

conduct a transaction in relation to

the lease, where:

(a) the goods were not acquired by

a consumer (within the meaning



(b) the supply was in the course of

carrying on a finance leasing

business

the lessee

12 supplying goods to a person by way

of hire-purchase, where:

(a) the goods are not acquired by a

consumer (within the meaning



(b) the supply is in the course of

carrying on a business of

supplying goods

the person


Introduction Part 1

Section 6




13 in the capacity of supplier of goods

to a person by way of

hire-purchase, allowing the person

to conduct a transaction in relation

to the hire-purchase agreement

concerned, where:

(a) the goods were not acquired by

a consumer (within the meaning



(b) the supply was in the course of


supplying goods

the person


for an account, providing a

chequebook, or a similar facility,

that enables the holder of the

account to draw a cheque on the

account


15 in the capacity of building society

or credit union, providing a


that enables the holder of an

account with the building society or

credit union to draw a cheque on an

account held by the building society

or credit union

the holder of the account with the

building society or credit union

16 in the capacity of trustee or

manager of a trust, providing a


that enables the holder of a

beneficial interest in the trust to

draw a cheque on an account held

by the trustee or manager of the

trust

the holder of the beneficial interest in

the trust


Part 1 Introduction

Section 6




17 issuing:


(b) a promissory note; or

(c) a letter of credit;

to a person, where the bill, note or

letter is issued by:

(d) an ADI; or

(e) a bank; or

(f) a building society; or

(g) a credit union; or

(h) a person specified in the

AML/CTF Rules

the person

18 issuing a debit card that enables the

holder of an account to debit the

account, where the account provider

is:

(a) an ADI; or

(b) a bank; or




AML/CTF Rules


18A issuing a debit card that enables a

signatory to an account (other than

the holder of the account) to debit

the account, where the account

provider is:

(a) an ADI; or

(b) a bank; or




AML/CTF Rules

the signatory


Introduction Part 1

Section 6




19 in the capacity of building society

or credit union, issuing a debit card

that enables the holder of an


credit union to debit an account

held by the building society or

credit union, where the account

provider of the last-mentioned

account is:

(a) an ADI; or

(b) a bank; or

(c) a person specified in the

AML/CTF Rules

the holder of the account with

building society or credit union

19A in the capacity of building society

or credit union, issuing a debit card

that enables a signatory to an


credit union (other than the holder

of the account with the building

society or credit union) to debit an

account held by the building society

or credit union, where the account

provider of the last-mentioned

account is:

(a) an ADI; or

(b) a bank; or

(c) a person specified in the

AML/CTF Rules

the signatory


Part 1 Introduction

Section 6




20 in the capacity of trustee or

manager of a trust, issuing a debit

card that enables the holder of a


debit an account held by the trustee

or manager of the trust, where the


(a) an ADI; or

(b) a bank; or




AML/CTF Rules

the holder of the beneficial interest in

the trust

20A in the capacity of trustee or

manager of a trust, issuing a debit

card that enables a signatory

authorised by the holder of a


debit an account held by the trustee

or manager of the trust, where the


(a) an ADI; or

(b) a bank; or




AML/CTF Rules

the signatory


Introduction Part 1

Section 6




21 issuing a stored value card to a

person, where:

(a) the whole or a part of the

monetary value stored in

connection with the card may be

withdrawn in cash; and

(b) the monetary value stored in

connection with the card is not

less than:

(i) $1,000; or

(ii) if another amount is

specified in the

regulations—that other

amount

the person

22 increasing the monetary value

stored in connection with a stored

value card held by a person, where:

(a) the whole or a part of the

monetary value stored in

connection with the card may be

withdrawn in cash; and

(b) the increased monetary value is

not less than:

(i) $1,000; or


specified in the


amount

the person


Part 1 Introduction

Section 6




23 issuing a stored value card to a

person, where:

(a) no part of the monetary value

stored in connection with the

card may be withdrawn in cash;

and

(b) the monetary value stored in

connection with the card is not

less than:

(i) $5,000; or


specified in the


amount

the person

24 increasing the monetary value

stored in connection with a stored

value card held by a person, where:

(a) no part of the monetary value

stored in connection with the

card may be withdrawn in cash;

and

(b) the increased monetary value is

not less than:

(i) $5,000; or


specified in the


amount

the person

25 issuing a traveller’s cheque to a

person

the person

26 in the capacity of issuer of a

traveller’s cheque, cashing or

redeeming a traveller’s cheque held

by a person

the person


Introduction Part 1

Section 6




27 issuing a money order, postal order

or similar order to a person, where

the face value of the order is not

less than:

(a) $1,000; or

(b) if another amount is specified in

the regulations—that other

amount

the person

28 in the capacity of issuer of a money

order, postal order or similar order,

cashing or redeeming a money

order, postal order or similar order

held by a person, where the face

value of the order is not less than:

(a) $1,000; or

(b) if another amount is specified in

the regulations—that other

amount

the person

29 in the capacity of ordering

institution, accepting an electronic

funds transfer instruction from the

payer

the payer

30 in the capacity of beneficiary

institution, making money available

to the payee as a result of an

electronic funds transfer instruction

the payee

31 in the capacity of a non-financier

carrying on a business of giving

effect to remittance arrangements,

accepting an instruction from a

transferor entity for the transfer of

money or property under a

designated remittance arrangement

the transferor entity


Part 1 Introduction

Section 6




32 in the capacity of a non-financier

carrying on a business of giving

effect to remittance arrangements,

making money or property

available, or arranging for it to be

made available, to an ultimate

transferee entity as a result of a

transfer under a designated

remittance arrangement

the ultimate transferee entity

32A operating a network of persons by

providing a platform or operating

system (however described), where:

(a) the persons in the network

provide a designated service

referred to in item 31 or 32 by

means of the platform or

operating system; and

(b) the operator is a non-financier.

the person who provides designated

services as part of the network

33 in the capacity of agent of a person,

acquiring or disposing of:

(a) a security; or

(b) a derivative; or

(ba) an Australian carbon credit

unit; or

(bb) an eligible international

emissions unit; or

(c) a foreign exchange contract;

on behalf of the person, where:

(d) the acquisition or disposal is in


business of acquiring or

disposing of securities,

derivatives, Australian carbon

credit units, eligible

international emissions units or

foreign exchange contracts in

the capacity of agent; and

(e) the service is not specified in the

AML/CTF Rules

the person


Introduction Part 1

Section 6




34 in the capacity of agent of a person,

acquiring or disposing of:


(b) a promissory note; or

(c) a letter of credit;

on behalf of the person, where:

(d) the acquisition or disposal is in


business of acquiring or

disposing of bills of exchange,

promissory notes or letters of

credit in the capacity of agent;

and

(e) the service is not specified in the

AML/CTF Rules

the person


Part 1 Introduction

Section 6




35 issuing or selling a security or

derivative to a person, where:

(a) the issue or sale is in the course

of carrying on a business of

issuing or selling securities or

derivatives; and

(b) in the case of an issue of a

security or derivative—the issue

does not consist of the issue by a

company of either of the

following:

(i) a security of the company

(other than an interest in

a managed investment

scheme); or

(ii) an option to acquire a

security of the company

(other than an option to

acquire an interest in a

managed investment

scheme); and

(ba) in the case of an issue of a


does not consist of the issue by a

government body of a security

of the government body or of an

option to acquire a security of

the government body; and

(c) in the case of an issue of a


is not an exempt financial

market operator issue; and

(d) such other conditions (if any) as

are set out in the AML/CTF

Rules are satisfied

the person

36 in the capacity of issuer of a bearer

bond, redeeming a bearer bond

the person to whom the proceeds of

the redemption are paid

37 issuing, or undertaking liability as

the insurer under, a life policy or

sinking fund policy

the holder of the policy


Introduction Part 1

Section 6




38 in the capacity of insurer for a life

policy or sinking fund policy,

accepting a premium in relation to

the policy

the holder of the policy

39 in the capacity of insurer for a life

policy or sinking fund policy,

making a payment to a person under

the policy

the person

40 in the capacity of provider of a

pension or annuity, accepting

payment of the purchase price for a

new pension or annuity, where:

(a) the provider is not a self

managed superannuation fund;

or

(b) the pension or annuity is

provided in the course of


providing pensions or annuities

the person to whom the pension or

annuity is to be paid

41 in the capacity of provider of a

pension or annuity, making a

payment to a person by way of:

(a) a payment of the pension or

annuity; or

(b) an amount resulting from the

commutation, in whole or in

part, of the pension or annuity;

or

(c) the residual capital value of the

pension or annuity;

where the provider is not a self

managed superannuation fund

the person


Part 1 Introduction

Section 6




42 in the capacity of trustee of:

(a) a superannuation fund (other

than a self managed

superannuation fund); or

(b) an approved deposit fund;

accepting a contribution, roll-over

or transfer in respect of a new or

existing member of the fund

the member

43 in the capacity of trustee of:

(a) a superannuation fund (other

than a self managed

superannuation fund); or

(b) an approved deposit fund;

cashing the whole or a part of an

interest held by a member of the

fund

the member, or if the member has

died, the person, or each of the

persons, who receives the cashed

whole or a cashed part of the relevant

interest

43A in the capacity of FHSA provider,


or transfer to an FHSA in respect of

a new or existing FHSA holder

the FHSA holder

43B in the capacity of FHSA provider,


interest held by an FHSA holder

the FHSA holder, or if the FHSA

holder has died, the person, or each

of the persons, who receives the

cashed whole or a cashed part of the

relevant interest

44 in the capacity of RSA provider,


or transfer to an RSA in respect of a

new or existing RSA holder

the RSA holder

45 in the capacity of RSA provider,


interest held by an RSA holder

the RSA holder, or if the RSA holder

has died, the person, or each of the

persons, who receives the cashed

whole or a cashed part of the relevant

interest


Introduction Part 1

Section 6




46 providing a custodial or depository

service, where:

(a) the service is provided in the

course of carrying on a business

of providing custodial or

depository services; and

(b) the service is not an exempt

legal practitioner service

the client of the service

47 providing a safe deposit box, or

similar facility, where:



of providing safe deposit boxes

or similar facilities; and

(b) the service is not an exempt

legal practitioner service

the person who is, or each of the

persons who are, authorised to lodge

items in the safe deposit box or

similar facility

48 guaranteeing a loan, where the

guarantee is given in the course of


guaranteeing loans

both:

(a) the lender; and

(b) the borrower

49 in the capacity of guarantor of a

loan, making a payment to the

lender, where the guarantee was

given in the course of carrying on a

business of guaranteeing loans

both:

(a) the lender; and

(b) the borrower

50 exchanging one currency (whether

Australian or not) for another

(whether Australian or not), where

the exchange is provided in the

course of carrying on a currency

exchange business

the person whose currency is

exchanged


Part 1 Introduction

Section 6




51 collecting physical currency, or

holding physical currency collected,

from or on behalf of a person,

where:



of collecting or holding physical

currency; and

(b) the physical currency was not

collected by the provider of the

service as consideration for the

supply of goods (within the

meaning of the Competition and

Consumer Act 2010); and

(c) the physical currency was not

collected by the provider of the

service as consideration for the

supply of services (within the

meaning of the Competition and

Consumer Act 2010) other than

the service of collecting or

holding physical currency; and

(d) the physical currency was not

collected as a donation to a

charity or charitable institution

the person

52 preparing a pay-roll, on behalf of a

person, in whole or in part from

physical currency collected, where

the service is provided in the course

of carrying on a business of

preparing pay-rolls

the person

53 delivering physical currency

(including pay-rolls) to a person,

where the service is provided in the

course of carrying on a business of

delivering physical currency

the person


Introduction Part 1

Section 6




54 in the capacity of holder of an

Australian financial services

licence, making arrangements for a

person to receive a designated

service (other than a service

covered by this item)

the person

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

Table 2—Bullion


Table 2—Bullion

Item Provision of a designated service Customer of the designated

service

1 buying bullion, where the buying is

in the course of carrying on a

business

the person from whom the bullion is

bought

2 selling bullion, where the selling is


business

the person to whom the bullion is

sold

Table 3—Gambling services




service

1 receiving or accepting a bet placed

or made by a person, where the

service is provided in the course of

carrying on a business

the person


Part 1 Introduction

Section 6




service

2 placing or making a bet on behalf of

a person, where the service is

provided in the course of carrying on

a business

the person

3 introducing a person who wishes to

make or place a bet to another

person who is willing to receive or

accept the bet, where the service is


a business

both:

(a) the person who wishes to make

or place the bet; and

(b) the person who is willing to

receive or accept the bet

4 paying out winnings in respect of a

bet, where the service is provided in

the course of carrying on a business

the person to whom the winnings are

paid

5 in the capacity of controller of an

eligible gaming machine venue,

allowing a person to play a game on

a gaming machine located at the

venue, where the service is provided


business

the person

6 accepting the entry of a person into a

game, where:

(a) the game is played for money or

anything else of value; and

(b) the game is a game of chance or

of mixed chance and skill; and

(c) the service is provided in the

course of carrying on a business;

and

(d) the game is not played on a

gaming machine located at an

eligible gaming machine venue

the person

7 exchanging money for gaming chips

or tokens, where the service is


a business

the person whose money is

exchanged


Introduction Part 1

Section 6




service

8 exchanging gaming chips or tokens

for money, where the service is


a business

the person whose gaming chips or

tokens are exchanged

9 paying out winnings, or awarding a

prize, in respect of a game, where:

(a) the game is played for money or

anything else of value; and

(b) the game is a game of chance or

of mixed chance and skill; and


course of carrying on a business;

and

(d) the game is not played on a

gaming machine located at an

eligible gaming machine venue


paid or the prize is awarded

10 in the capacity of controller of an

eligible gaming machine venue,

paying out winnings, or awarding a

prize, in respect of a game, where:

(a) the game is played on a gaming

machine located at the venue;

and

(b) the winnings are paid out, or the

prize is awarded, by the

controller as agent of the owner

or lessee of the gaming machine;

and




paid or the prize is awarded


Part 1 Introduction

Section 6




service

11 in the capacity of account provider,

opening an account, where:

(a) the account provider is a person

who provides a service covered

by item 1, 2, 3, 4, 6, 7, 8 or 9;

and

(b) the purpose, or one of the

purposes, of the account is to

facilitate the provision of a

service covered by item 1, 2, 3,

4, 6, 7, 8 or 9; and





for a new or existing account,

allowing a person to become a

signatory to the account, where:



by item 1, 2, 3, 4, 6, 7, 8 or 9;

and





4, 6, 7, 8 or 9; and



the signatory


Introduction Part 1

Section 6




service


for an account, allowing a

transaction to be conducted in

relation to the account, where:



by item 1, 2, 3, 4, 6, 7, 8 or 9;

and





4, 6, 7, 8 or 9; and



both:

(a) the holder of the account; and

(b) each other signatory to the

account

14 exchanging one currency (whether

Australian or not) for another

(whether Australian or not), where:

(a) the exchange is provided by a

person who provides a service

covered by item 1, 2, 3, 4, 6, 7, 8

or 9; and

(b) the service is provided in the


the person whose currency is

exchanged

Table 4—Prescribed services


Table 4—Prescribed services


service

1 providing a service specified in the

regulations

the person who, under the

regulations, is taken to be the person

to whom the service is provided


Part 1 Introduction

Section 7


Geographical link

(6) An item of a table in this section, other than item 32A of table 1,

does not apply to the provision by a person of a service to a

customer unless:

(a) the service is provided at or through a permanent

establishment of the person in Australia; or

(b) both of the following subparagraphs apply:

(i) the person is a resident of Australia;

(ii) the service is provided at or through a permanent

establishment of the person in a foreign country; or

(c) both of the following subparagraphs apply:

(i) the person is a subsidiary of a company that is a resident

of Australia;

(ii) the service is provided at or through a permanent

establishment of the person in a foreign country.

Note: For resident, see section 14.

Amendment of items

(7) The regulations may amend an item of a table in this section.

7 Services provided jointly to 2 or more customers

(1) For the purposes of this Act, if a designated service is provided

jointly to 2 or more customers, the service is taken to have been

provided to each of those customers.

(2) For the purposes of this Act, if 2 or more persons are prospective

joint customers in relation to a designated service, each of those

persons is taken to be a prospective customer in relation to the

designated service.

Note: See also the definition of customer in section 5.

8 Person-to-person electronic funds transfer instructions

Multiple-institution person-to-person electronic funds transfer

instruction

(1) For the purposes of this Act, if:


Introduction Part 1

Section 8


(a) a person (the payer) instructs a person (the ordering

institution) to transfer money controlled by the payer to a

third person (the payee) on the basis that the transferred

money will be made available to the payee by:

(i) being credited to an account held by the payee with a

fourth person (the beneficiary institution); or

(ii) being paid to the payee by a fourth person (the

beneficiary institution); and

(b) either:

(i) the transfer is to be carried out wholly or partly by

means of one or more electronic communications; or

(ii) the transfer instruction is to be passed on wholly or

partly by means of one or more electronic

communications; and

(c) the ordering institution is:

(i) an ADI; or

(ii) a bank; or

(iii) a building society; or

(iv) a credit union; or

(v) a person specified in the AML/CTF Rules; and

(d) the beneficiary institution is:

(i) an ADI; or

(ii) a bank; or



(v) a person specified in the AML/CTF Rules;

then:

(e) the instruction is a multiple-institution person-to-person

electronic funds transfer instruction; and

(f) if there are one or more persons interposed between the

ordering institution and the beneficiary institution—disregard

those interposed persons in working out the identities of the

following:

(i) the payer;

(ii) the ordering institution;

(iii) the payee;

(iv) the beneficiary institution.

Note: Transfer has an extended meaning—see section 5.


Part 1 Introduction

Section 9


Same-institution person-to-person electronic funds transfer

instruction




third person (the payee) on the basis that the transferred

money will be made available to the payee by:

(i) being credited to an account held by the payee with the

ordering institution; or

(ii) being paid to the payee by the ordering institution; and

(b) the transfer is to be carried out wholly or partly by means of

one or more electronic communications; and


(i) an ADI; or

(ii) a bank; or




then:

(d) the instruction is a same-institution person-to-person


(e) for the purposes of the application of this Act to making the

money available to the payee, the ordering institution may

also be known as the beneficiary institution.


9 Same-person electronic funds transfer instructions

Multiple-institution same-person electronic funds transfer

instruction




third person (the beneficiary institution) on the basis that the

transferred money will be made available to the payer by:

(i) being credited to an account held by the payer with the

beneficiary institution; or


Introduction Part 1

Section 9


(ii) being paid to the payer by the beneficiary institution;

and

(b) either:

(i) the transfer is to be carried out wholly or partly by

means of one or more electronic communications; or

(ii) the transfer instruction is to be passed on wholly or

partly by means of one or more electronic

communications; and


(i) an ADI; or

(ii) a bank; or




(d) the beneficiary institution is:

(i) an ADI; or

(ii) a bank; or




then:

(e) the instruction is a multiple-institution same-person


(f) for the purposes of the application of this Act to making the

money available to the payer, the payer may also be known

as the payee; and

(g) if there are one or more persons interposed between the

ordering institution and the beneficiary institution—disregard

those interposed persons in working out the identities of the

following:

(i) the payer;

(ii) the ordering institution;

(iii) the beneficiary institution.



Part 1 Introduction

Section 10


Same-institution same-person electronic funds transfer instruction



institution) to make money controlled by the payer available

to the payer by:

(i) being credited to an account held by the payer with the

ordering institution; or

(ii) being paid to the payer by the ordering institution; and

(b) the transfer is to be carried out wholly or partly by means of

one or more electronic communications; and


(i) an ADI; or

(ii) a bank; or




then:

(d) the instruction is a same-institution same-person electronic

funds transfer instruction; and

(e) for the purposes of the application of this Act to making the

money available to the payer:

(i) the payer may also be known as the payee; and

(ii) the ordering institution may also be known as the

beneficiary institution.

10 Designated remittance arrangements etc.

(1) A reference in this Act to a designated remittance arrangement is

a reference to a remittance arrangement, where:

(a) at least one of the persons described in the following

subparagraphs is a non-financier:

(i) a person who accepts an instruction from the transferor

entity for the transfer of money or property under the

remittance arrangement;

(ii) a person who makes money or property available, or

arranges for it to be made available, to an ultimate

transferee entity as a result of a transfer under the

remittance arrangement; and


Introduction Part 1

Section 11


(c) the remittance arrangement satisfies such other conditions (if

any) as are specified in the AML/CTF Rules.

Remittance arrangement

(2) A reference in this Act to a remittance arrangement is a reference

to an arrangement that is for the transfer of money or property, and

includes a reference to an arrangement that, under the regulations,

is taken to be a remittance arrangement for the purposes of this

Act.


Transferor entity and ultimate transferee entity

(3) For the purposes of the application of this Act to a remittance

arrangement:

(a) the transferor entity is the person from whom an instruction

is accepted for the transfer of money or property under the

arrangement; and

(b) the ultimate transferee entity is the person to whom money

or property is ultimately transferred under the arrangement.


11 Control test

(1) For the purposes of this Act, the question whether an individual

passes the control test in relation to a company is to be determined

in the same manner in which that question is determined for the

purposes of section 1207Q of the Social Security Act 1991.

(2) For the purposes of this Act, the question whether an individual

passes the control test in relation to a trust is to be determined in

the same manner in which that question is determined for the

purposes of section 1207V of the Social Security Act 1991.

(3) For the purposes of subsections (1) and (2) of this section, assume

that paragraph 1207C(1)(g) and subsections 1207C(2), (3) and (4)

of the Social Security Act 1991 had not been enacted.

Note: The control test is used in sections 14 (residency) and 15 (shell banks).


Part 1 Introduction

Section 12


12 Owner-managed branches of ADIs

(1) For the purposes of this Act, if a person is a party to an exclusive

arrangement with an ADI to offer designated services advertised or

promoted under a single brand, trademark or business name, the

person is an owner-managed branch of the ADI.

(2) For the purposes of this Act, if an owner-managed branch of an

ADI proposes to provide, commences to provide, or provides, such

a designated service, the designated service is taken to have been

proposed to be provided, to have been commenced to have been

provided, or to have been provided, as the case requires, by the

ADI.

13 Eligible gaming machine venues

For the purposes of this Act, if:

(a) a person (the first person) is in control of a particular venue;

and

(b) one or more gaming machines are located at the venue; and

(c) the first person is neither the owner nor the lessee of the

gaming machines; and

(d) such other conditions (if any) as are specified in the

AML/CTF Rules are satisfied;

then:

(e) the venue is an eligible gaming machine venue; and

(f) the first person is the controller of the venue.

14 Residency

Individual

(1) For the purposes of this Act, an individual (including an individual

in the capacity of trustee) is a resident of a particular country if,

and only if, the individual is ordinarily resident in that country.

Note: See also subsections (7), (8) and (9).

Company

(2) For the purposes of this Act, a company (including a company in

the capacity of trustee) is a resident of a particular country if, and

only if:


Introduction Part 1

Section 14


(a) the company is incorporated in that country; or

(b) both:

(i) an individual passes the control test in relation to the

company; and

(ii) the individual is a resident of that country.

Trust

(3) For the purposes of this Act, a trust is a resident of a particular

country if, and only if:

(a) the trustee, or any of the trustees, is a resident of that country;

or

(b) both:

(i) an individual passes the control test in relation to the

trust; and

(ii) the individual is a resident of that country; or

(c) both:

(i) a person benefits or is capable (whether by the exercise

of a power of appointment or otherwise) of benefiting

under the trust, either directly or through any interposed

companies, partnerships or trusts; and

(ii) the person is a resident of that country.

Partnership

(4) For the purposes of this Act, a partnership is a resident of a

particular country if, and only if, a partner is a resident of that

country.

Corporation sole

(5) For the purposes of this Act, a corporation sole is a resident of a

particular country if, and only if, the corporation sole was

established in that country.

Body politic

(6) For the purposes of this Act, a body politic of, or of a part of, a

particular country is a resident of that country.


Part 1 Introduction

Section 15


When an individual is ordinarily resident in a particular country

(7) The AML/CTF Rules may specify matters that are to be taken into

account in determining, for the purposes of this section, whether an

individual (including an individual in the capacity of trustee) is

ordinarily resident in a particular country.

(8) The AML/CTF Rules may provide that an individual (including an

individual in the capacity of trustee) is taken, for the purposes of

this section, to be ordinarily resident in a particular country if the

individual satisfies one or more specified conditions.

(9) The AML/CTF Rules may provide that an individual (including an

individual in the capacity of trustee) is taken, for the purposes of

this section, not to be ordinarily resident in a particular country if

the individual satisfies one or more specified conditions.

Note: The expression resident is used in subsection 6(6) (designated services) and sections 100 (correspondent banking) and 102 (countermeasures).

15 Shell banks

(1) For the purposes of this Act, a shell bank is a corporation that:

(a) is incorporated in a foreign country; and

(b) is authorised to carry on banking business in its country of

incorporation; and

(c) does not have a physical presence in its country of

incorporation; and

(d) is not an affiliate of another corporation that:

(i) is incorporated in a particular country; and

(ii) is authorised to carry on banking business in its country

of incorporation; and

(iii) has a physical presence in its country of incorporation.

When a corporation has a physical presence in a country

(2) For the purposes of determining what is a shell bank, a corporation

has a physical presence in a country if, and only if:

(a) the corporation carries on banking business at a place in that

country; and

(b) at least one full-time employee of the corporation performs

banking-related duties at that place.


Introduction Part 1

Section 16


When a corporation is affiliated with another corporation

(3) For the purposes of determining what is a shell bank, a corporation

is affiliated with another corporation if, and only if:

(a) the corporation is a subsidiary of the other corporation; or

(b) at least one individual passes the control test in relation to

both corporations; or

(c) under the regulations, both corporations are taken to be under

common control.

16 Electronic communications

(1) Unless the contrary intention appears, in determining the

application of a provision of this Act, it is immaterial whether any

act or thing is or was done wholly or partly by means of one or

more electronic communications.

(2) Subsection (1) is enacted for the avoidance of doubt.

17 Bearer negotiable instruments

(1) For the purposes of this Act, a bearer negotiable instrument is:


(b) a cheque; or

(c) a promissory note; or

(d) a bearer bond; or

(e) a traveller’s cheque; or

(f) a money order, postal order or similar order; or

(g) a negotiable instrument not covered by any of the above

paragraphs.

Incomplete documents

(2) For the purposes of determining whether a document is covered by

paragraph (1)(f) or (g), it is immaterial that the document is

incomplete because the document does not specify:

(a) an amount to be paid; or

(b) a payee.


Part 1 Introduction

Section 18


18 Translation of foreign currency to Australian currency

In determining, for the purposes of this Act, whether an amount of

foreign currency (including an amount in which a document is

denominated) is not less than an Australian dollar amount, the

amount of foreign currency is to be translated to Australian

currency at the exchange rate applicable at the relevant time.

19 Translation of e-currency to Australian currency

In determining, for the purposes of this Act, whether an amount of

e-currency is not less than an Australian dollar amount, the amount

of e-currency is to be translated to Australian currency in

accordance with the method specified in the AML/CTF Rules.

20 Clubs and associations

For the purposes of this Act, the fact that a club or association

provides services to its members does not prevent those services

from being services provided in the course of carrying on a

business.

21 Permanent establishment

(1) For the purposes of this Act, a permanent establishment of a

person is a place at or through which the person carries on any

activities or business, and includes a place where the person is

carrying on activities or business through an agent.

Mobile services etc.


(a) a person; or

(b) an agent of a person acting on behalf of the person;

provides a service while:

(c) operating on a mobile basis; or

(d) travelling;

in a particular country, the person is taken to provide the service at

or through a permanent establishment of the person in that

country.


Introduction Part 1

Section 22


Electronic communications

(3) The regulations may provide that, if:

(a) a person provides a specified service wholly or partly by

means of one or more electronic communications; and

(b) the conditions set out in the regulations are taken to be

satisfied in relation to a particular country;

then:

(c) the service is taken, for the purposes of this Act, to be

provided at or through a permanent establishment of the

person in that country; and

(d) the service is taken, for the purposes of this Act, not to be

provided at or through a permanent establishment of the

person in another country.

22 Officials of designated agencies etc.

(1) For the purposes of this Act, an official of a designated agency or a

non-designated Commonwealth agency is a person who is:

(a) the chief executive officer (however described) of the

agency; or

(b) a member or acting member of the agency; or

(c) a member of the staff of the agency; or

(d) an officer or employee of the agency; or

(e) an officer, employee or other individual under the control of

the chief executive officer (however described) of the

agency; or

(f) an individual who, under the regulations, is taken to be an

official of the agency for the purposes of this Act;

and includes:

(g) in the case of the Australian Crime Commission—a person

who is an examiner of the Australian Crime Commission;

and

(h) in the case of a Commonwealth Royal Commission—a

person who is:

(i) a legal practitioner (however described) appointed to

assist the Commission; and

(ii) a person authorised under subsection (2); and

(i) in the case of a State/Territory Royal Commission—a person

who is:


Part 1 Introduction

Section 23


(i) a legal practitioner (however described) appointed to

assist the Commission; and

(ii) a person authorised under subsection (3).

Royal Commissions

(2) Either:

(a) the sole Commissioner of a Commonwealth Royal

Commission; or

(b) a member of a Commonwealth Royal Commission;

may, by writing, authorise a person assisting the Commission to be

an official of the Commission for the purposes of this Act.

(3) Either:

(a) the sole Commissioner of a State/Territory Royal

Commission; or

(b) a member of a State/Territory Royal Commission;

may, by writing, authorise a person assisting the Commission to be

an official of the Commission for the purposes of this Act.

Note: For revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

23 Continuity of partnerships

For the purposes of this Act, a change in the composition of a

partnership does not affect the continuity of the partnership.

24 Crown to be bound

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to a pecuniary penalty or

to be prosecuted for an offence.

(3) The protection in subsection (2) does not apply to an authority of

the Crown.

25 Extension to external Territories

This Act extends to every external Territory.


Introduction Part 1

Section 26


26 Extra-territorial application

(1) Unless the contrary intention appears, this Act extends to acts,

omissions, matters and things outside Australia.

Note: Subsection 6(6) is an example of a contrary intention.

(2) Section 14.1 of the Criminal Code does not apply to an offence

against this Act.


Part 2 Identification procedures etc.

Division 1 Introduction

Section 27


Part 2—Identification procedures etc.

Division 1—Introduction


The following is a simplified outline of this Part:

• A reporting entity must carry out a procedure to verify a

customer’s identity before providing a designated service to

the customer. However, in special cases, the procedure may be

carried out after the provision of the designated service.

• Certain pre-commencement customers are subject to modified

identification procedures.

• Certain low-risk services are subject to modified identification

procedures.

• A reporting entity must carry out ongoing customer due

diligence.


Identification procedures etc. Part 2

Identification procedures for certain pre-commencement customers Division 2

Section 28


Division 2—Identification procedures for certain

pre-commencement customers

28 Identification procedures for certain pre-commencement

customers

Scope

(1) This section applies to the provision by a reporting entity of a

designated service (the post-commencement designated service) to

a customer if, at a time before the commencement of this section,

the reporting entity commenced to provide a designated service to

the customer.

Exemption

(2) Sections 32 and 34 do not apply to the provision by the reporting

entity of the post-commencement designated service to the

customer.

Note: For special rules about verification of identity etc., see section 29.

Interpretation

(3) For the purposes of this section, assume that Part 1 had been in

force at all material times before the commencement of this

section.

29 Verification of identity of pre-commencement customer etc.

Scope

(1) This section applies to a reporting entity if:

(a) at a time before the commencement of this section, the

reporting entity commenced to provide a designated service

to a customer; and

(b) after the commencement of this section, a suspicious matter

reporting obligation arises for the reporting entity in relation

to the customer.

Note 1: For suspicious matter reporting obligation, see section 41.

Note 2: For tipping-off offences, see section 123.



Division 2 Identification procedures for certain pre-commencement customers

Section 29


Requirement

(2) The reporting entity must:

(a) take such action as is specified in the AML/CTF Rules; and

(b) do so within the time limit allowed under the AML/CTF

Rules.

Civil penalty

(3) Subsection (2) is a civil penalty provision.

Interpretation

(4) For the purposes of this section, assume that Part 1 had been in

force at all material times before the commencement of this

section.



Identification procedures for certain low-risk services Division 3

Section 30


Division 3—Identification procedures for certain low-risk

services

30 Identification procedures for certain low-risk services

Scope

(1) This section applies to the provision by a reporting entity of a

designated service to a customer if, under the AML/CTF Rules, the

service is taken to be a low-risk designated service.

(2) Sections 32 and 34 do not apply to the provision by the reporting

entity of the designated service to the customer.

Note: For special rules about verification of identity etc., see section 31.

31 Verification of identity of low-risk service customer etc.

Scope


(a) at a particular time (the relevant time), the reporting entity

commences to provide a designated service to a customer;

and

(b) under the AML/CTF Rules, the service is taken to be a

low-risk designated service; and

(c) at the relevant time or a later time, a suspicious matter

reporting obligation arises for the reporting entity in relation

to the customer.


Note 2: For tipping-off offences, see section 123.

Requirement




Rules.



Division 3 Identification procedures for certain low-risk services

Section 31


Civil penalty




Identification procedures etc. Division 4

Section 32


Division 4—Identification procedures etc.

32 Carrying out the applicable customer identification procedure

before the commencement of the provision of a designated

service.

(1) A reporting entity must not commence to provide a designated

service to a customer if:

(a) there are no special circumstances that justify carrying out

the applicable customer identification procedure in respect of

the customer after the commencement of the provision of the

service (see section 33); and

(b) the reporting entity has not previously carried out the

applicable customer identification procedure in respect of the

customer; and

(c) neither section 28 nor section 30 applies to the provision of

the service.

Note 1: See also the definition of commence to provide a designated service in section 5.

Note 2: See also section 38 (when applicable customer identification procedure deemed to be carried out by a reporting entity).

Civil penalty


33 Special circumstances that justify carrying out the applicable

customer identification procedure after the

commencement of the provision of a designated service

For the purposes of this Act, if a reporting entity commences to

provide a designated service to a customer, there are taken to be

special circumstances that justify the carrying out of the applicable

customer identification procedure in respect of the customer after

the commencement of the provision of the service if, and only if:

(a) the service is specified in the AML/CTF Rules; and

(b) such other conditions (if any) as are set out in the AML/CTF

Rules are satisfied.




Division 4 Identification procedures etc.

Section 34


34 Carrying out the applicable customer identification procedure

after the commencement of the provision of a designated

service etc.

(1) If:

(a) a reporting entity has commenced to provide a designated

service to a customer; and

(b) when the reporting entity commenced to provide the

designated service to the customer, there were special

circumstances that justified the carrying out of the applicable

customer identification procedure in respect of the customer

after the commencement of the provision of the service (see

section 33); and

(c) the reporting entity has not previously carried out the

applicable customer identification procedure in respect of the

customer; and

(d) the reporting entity has not carried out the applicable

customer identification procedure in respect of the customer

within whichever of the following periods is applicable:

(i) if the designated service is specified in the AML/CTF

Rules—the period ascertained in accordance with the

AML/CTF Rules; or

(ii) in any other case—the period of 5 business days after

the day on which the reporting entity commenced to

provide the service; and

(e) neither section 28 nor section 30 applies to the provision of

the service;

then, after the end of the period referred to in whichever of

subparagraphs (d)(i) or (ii) is applicable, the reporting entity must

not continue to provide, and must not commence to provide, any

designated services to the customer until the reporting entity

carries out the applicable customer identification procedure in

respect of the customer.

Note 1: See also the definition of commence to provide a designated service in section 5.

Note 2: See also section 38 (when applicable customer identification procedure deemed to be carried out by a reporting entity).



Identification procedures etc. Division 4

Section 34


(2) Subsection (1) does not apply if:

(a) under the AML/CTF Rules, the reporting entity is not

required to carry out the applicable customer identification

procedure in respect of the customer; and

(b) the reporting entity takes such action as is specified in the

AML/CTF Rules.

Civil penalty


Periods

(4) A period ascertained in accordance with AML/CTF Rules made for

the purposes of subparagraph (1)(d)(i):

(a) must commence at the time when the reporting entity

commences to provide the designated service concerned; and

(b) may be expressed to end on the occurrence of a specified

event.

(5) Paragraph (4)(b) does not limit subparagraph (1)(d)(i).



Division 5 Verification of identity etc.

Section 35


Division 5—Verification of identity etc.

35 Verification of identity of customer etc.

Scope


(a) at a particular time, the reporting entity has carried out, or has

purported to carry out, the applicable customer identification

procedure in respect of a particular customer to whom the

reporting entity provided, or proposed to provide, a

designated service; and

(b) at a later time, any of the following subparagraphs applies:

(i) an event prescribed by the AML/CTF Rules happens;

(ii) a circumstance specified in the AML/CTF Rules comes

into existence;

(iii) a period ascertained in accordance with the AML/CTF

Rules ends.

Note: See also section 38 (when applicable customer identification procedure deemed to be carried out by a reporting entity).

Requirement




Rules.

Civil penalty




Use and disclosure of personal information for the purposes of verifying an individual’s

identity Division 5A

Section 35A


Division 5A—Use and disclosure of personal information

for the purposes of verifying an individual’s

identity

35A Reporting entities may disclose certain personal information to

credit reporting agencies for identity verification

purposes

(1) A reporting entity may, to assist in verifying the identity of an

individual for the purposes of this Act, the regulations or the

AML/CTF Rules:

(a) disclose any or all of the following personal information to a

credit reporting agency for the purposes of making a request

referred to in paragraph (b):

(i) the individual’s name;

(ii) the individual’s residential address;

(iii) the individual’s date of birth; and

(b) request the credit reporting agency to provide an assessment

of whether the personal information so disclosed matches (in

whole or part) personal information contained in a credit

information file in the possession or control of the credit

reporting agency.

(2) A reporting entity must not make a verification request in relation

to an individual unless, before making the request:

(a) the individual was given information about:

(i) the reasons for making the request; and

(ii) the personal information about the individual that may

be disclosed to the credit reporting agency; and

(iii) the fact that the reporting entity may request the credit

reporting agency to provide an assessment of whether

the personal information matches (in whole or part)

personal information contained in a credit information

file in the possession or control of the credit reporting

agency; and

(iv) the fact that the credit reporting agency may prepare and

provide to the reporting entity such an assessment; and



Division 5A Use and disclosure of personal information for the purposes of verifying

an individual’s identity

Section 35B


(v) the fact that the credit reporting agency may use the

personal information about the individual, and the

names, residential addresses and dates of birth contained

in credit information files of other individuals, for the

purpose of preparing such an assessment; and

(b) the individual expressly agreed to the making of the request

and the disclosure of the personal information; and

(c) an alternative means of verifying the identity of the

individual was made available to the individual.

(3) A disclosure of personal information under paragraph (1)(a) is

taken to be authorised by law for the purposes of paragraph 2.1(g)

of National Privacy Principle 2 in Schedule 3 to the Privacy Act

1988.

35B Credit reporting agencies may use and disclose certain personal

information for identity verification purposes

(1) A credit reporting agency that receives a verification request from

a reporting entity in relation to an individual may:

(a) prepare and provide to the reporting entity an assessment in

accordance with this section of whether any or all of the

following personal information matches (in whole or part)

personal information contained in a credit information file in

the possession or control of the credit reporting agency:

(i) the individual’s name;

(ii) the individual’s residential address;

(iii) the individual’s date of birth; and

(b) use the personal information about the individual, and the

names, residential addresses and dates of birth contained in

credit information files of other individuals, for the purpose

of preparing the assessment.

(2) An assessment provided under subsection (1) to a reporting entity:

(a) must be an overall assessment of the extent of the match

between the personal information disclosed by the reporting

entity and personal information contained in a credit

information file in the possession or control of the credit

reporting agency; and

(b) must not include separate assessments of the match between

particular categories of that personal information.





Section 35C


(3) To the extent that providing an assessment in relation to an

individual involves a disclosure of personal information contained

in an individual’s credit information file to a person, body or

agency other than the individual, the disclosure is taken to be

authorised by law for the purposes of paragraph 18K(1)(m) of the

Privacy Act 1988.

35C Reporting entities to notify inability to verify identity

(1) This section applies if:

(a) a reporting entity makes a verification request in relation to

an individual; and

(b) an assessment is provided in relation to the individual; and

(c) the reporting entity is unable to verify the identity of the

individual, having regard to the assessment.

(2) The reporting entity must give a written notice to the individual:

(a) stating that the reporting entity is unable to verify the identity

of the individual having regard to the assessment; and

(b) specifying the name of the credit reporting agency that

provided the assessment; and

(c) offering the individual an alternative means of verifying the

identity of the individual.

35D Verification information not to be included on credit

information file

(1) A credit reporting agency must not include on an individual’s

credit information file personal information that relates to a

verification request or an assessment in relation to the individual.

(2) This section has effect despite subsection 18K(5) of the Privacy

Act 1988.

35E Retention of verification information—credit reporting agencies

(1) A credit reporting agency that receives a verification request in

relation to an individual must retain the following information for 7

years after the request was received:

(a) the name of the reporting entity that made the request;

(b) the date on which the request was made;





Section 35F


(c) the personal information about the individual that was

provided by the reporting entity to the credit reporting

agency;

(d) the date on which the credit reporting agency provided an

assessment (if any) in relation to the individual;

(e) such other information about the verification request as is

specified in the AML/CTF Rules.

(2) A credit reporting agency that retains information under

subsection (1) must delete the information at the end of the 7 year

period referred to in that subsection.

Civil penalty

(3) Subsections (1) and (2) are civil penalty provisions.

35F Retention of verification information—reporting entities

(1) A reporting entity that makes a verification request in relation to an

individual must make a record of the following; (a) the name of the credit reporting agency to which the request

was made;

(b) the personal information about the individual that was

provided by the reporting entity to the credit reporting

agency;

(c) the assessment (if any) provided by the credit reporting

agency in relation to the individual;

(d) such other information about the verification request as is


(2) The reporting entity must retain the record, or a copy of the record,

until the end of the first 7 year period:

(a) that began at a time after the verification request was made;

and

(b) throughout the whole of which the reporting entity did not

provide any designated services to the individual.

(3) A reporting entity that retains a record, or a copy of a record, under

subsection (2) must delete the record at the end of the 7 year period

referred to in that subsection.





Section 35G


Civil penalty

(4) Subsections (1), (2) and (3) are civil penalty provisions.

Designated business groups

(5) If:

(a) a reporting entity is part of a designated business group; and

(b) such other conditions as are specified in the AML/CTF Rules

are satisfied;

the obligation imposed on the reporting entity by subsection (2) or

(3) may be discharged by any other member of the group.

35G Access to verification information

A credit reporting agency or a reporting entity in possession or

control of personal information, or other information of a kind

referred to in subsection 35E(1), that relates to a verification

request or an assessment in relation to an individual must take

reasonable steps to ensure that the individual can obtain access to

the information.

35H Unauthorised access to verification information—offence

(1) A person commits an offence if:

(a) the person obtains access to information; and

(b) the information is personal information that relates to a

verification request or an assessment in relation to an

individual.

Penalty: 300 penalty units.

(2) Subsection (1) does not apply if the access is obtained in

accordance with, or as otherwise authorised by, this Act or any

other law.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

35J Obtaining access to verification information by false

pretences—offence

A person commits an offence if:





Section 35K


(a) the person obtains access to information; and



individual; and

(c) the information is obtained by false pretence.


35K Unauthorised use or disclosure of verification information—

offence


(a) the person uses or discloses information; and



individual.


(2) Subsection (1) does not apply if the use or disclosure is in

accordance with, or as otherwise authorised by, this Act or any

other law.


35L Breach of requirement is an interference with privacy

A breach of a requirement of this Division in relation to an

individual constitutes:

(a) in the case of a breach by a credit reporting agency—an act

or practice involving an interference with the privacy of the

individual for the purposes of section 13 of the Privacy Act

1988; or

(b) in the case of a breach by a reporting entity—an act or

practice involving an interference with the privacy of the

individual for the purposes of section 13A of the Privacy Act

1988.

Note: These acts or practices may be the subject of complaints under section 36 of that Act.



Ongoing customer due diligence Division 6

Section 36


Division 6—Ongoing customer due diligence

36 Ongoing customer due diligence

(1) A reporting entity must:

(a) monitor the reporting entity’s customers in relation to the

provision by the reporting entity of designated services at or

through a permanent establishment of the reporting entity in

Australia, with a view to:

(i) identifying; and

(ii) mitigating; and

(iii) managing;

the risk the reporting entity may reasonably face that the

provision by the reporting entity of a designated service at or


Australia might (whether inadvertently or otherwise) involve

or facilitate:

(iv) money laundering; or

(v) financing of terrorism; and

(b) do so in accordance with the AML/CTF Rules.

Civil penalty


Exemption

(3) This section does not apply to a designated service covered by

item 54 of table 1 in section 6.



(4) If a reporting entity is a member of a designated business group,

the obligation imposed on the reporting entity by subsection (1)

may be discharged by any other member of the group.



Division 6 Ongoing customer due diligence

Section 36


Registered remittance affiliates

(5) If an obligation is imposed by subsection (1) on a reporting entity

in its capacity as a registered remittance affiliate of a registered

remittance network provider, the obligation may be discharged by

the registered remittance network provider.



General provisions Division 7

Section 37


Division 7—General provisions

37 Applicable customer identification procedures may be carried

out by an agent of a reporting entity

(1) The principles of agency apply in relation to the carrying out by a

reporting entity of an applicable customer identification procedure

or an identity verification procedure.

(2) For example, a reporting entity may authorise another person to be

its agent for the purposes of carrying out applicable customer

identification procedures or identity verification procedures on the

reporting entity’s behalf.

(3) To avoid doubt, if a reporting entity provides a designated service

to a customer through an agent of the reporting entity, the reporting

entity may authorise:

(a) that agent; or

(b) any other person;

to be its agent for the purposes of carrying out the applicable

customer identification procedure or an identity verification

procedure in respect of the customer on the reporting entity’s

behalf.

(4) This section does not otherwise limit the operation of the principles

of agency for the purposes of this Act.

38 Applicable customer identification procedures deemed to be

carried out by a reporting entity

If:

(a) a reporting entity carried out the applicable customer

identification procedure in respect of a particular customer to

whom the reporting entity provided, or proposed to provide,

a designated service; and

(b) the applicable customer identification procedure was carried

out in such circumstances as are specified in the AML/CTF

Rules; and



Division 7 General provisions

Section 39


(c) the customer is or becomes a customer to whom another

reporting entity provides, or proposes to provide, a

designated service; and

(d) such other conditions set out in the AML/CTF Rules are

satisfied;

this Act (other than Part 10) has effect as if the applicable customer

identification procedure had also been carried out in respect of the

customer by the other reporting entity.

39 General exemptions

(1) This Part does not apply to a designated service that is of a kind


(2) The AML/CTF Rules may provide that a specified provision of this

Part does not apply to a designated service that is of a kind


(3) This Part does not apply to a designated service that is provided in

circumstances specified in the AML/CTF Rules.


Part does not apply to a designated service that is provided in


(5) This Part does not apply to a designated service that is provided by

a reporting entity at or through a permanent establishment of the

entity in a foreign country.

(6) This Part (other than Division 6) does not apply to a designated

service covered by item 40, 42 or 44 of table 1 in section 6.

(7) This Part does not apply to a designated service covered by item 54

of table 1 in section 6 if the service relates to arrangements for a

person to receive a designated service covered by item 40, 42 or 44

of that table.

Note 1: Item 40 of table 1 in section 6 deals with accepting payment of the purchase price for a new pension or annuity.

Note 2: Item 42 of table 1 in section 6 deals with accepting a superannuation contribution, roll-over or transfer.

Note 3: Item 44 of table 1 in section 6 deals with accepting an RSA contribution, roll-over or transfer.




Section 39


Note 4: Item 54 of table 1 in section 6 covers a holder of an Australian financial services licence who arranges for a person to receive a designated service.


Part 3 Reporting obligations


Section 40


Part 3—Reporting obligations




• A reporting entity must give the AUSTRAC CEO reports

about suspicious matters.

• If a reporting entity provides a designated service that

involves a threshold transaction, the reporting entity must give

the AUSTRAC CEO a report about the transaction.

• If a person sends or receives an international funds transfer

instruction, the person must give the AUSTRAC CEO a report

about the instruction.

• A reporting entity may be required to give AML/CTF

compliance reports to the AUSTRAC CEO.


Reporting obligations Part 3

Suspicious matters Division 2

Section 41


Division 2—Suspicious matters

41 Reports of suspicious matters

Suspicious matter reporting obligation

(1) A suspicious matter reporting obligation arises for a reporting

entity in relation to a person (the first person) if, at a particular

time (the relevant time):

(a) the reporting entity commences to provide, or proposes to

provide, a designated service to the first person; or

(b) both:

(i) the first person requests the reporting entity to provide a

designated service to the first person; and

(ii) the designated service is of a kind ordinarily provided

by the reporting entity; or

(c) both:

(i) the first person inquires of the reporting entity whether

the reporting entity would be willing or prepared to

provide a designated service to the first person; and

(ii) the designated service is of a kind ordinarily provided

by the reporting entity;

and any of the following conditions is satisfied:

(d) at the relevant time or a later time, the reporting entity

suspects on reasonable grounds that the first person is not the

person the first person claims to be;

(e) at the relevant time or a later time, the reporting entity

suspects on reasonable grounds that an agent of the first

person who deals with the reporting entity in relation to the

provision or prospective provision of the designated service

is not the person the agent claims to be;

(f) at the relevant time or a later time, the reporting entity

suspects on reasonable grounds that information that the

reporting entity has concerning the provision, or prospective

provision, of the service:

(i) may be relevant to investigation of, or prosecution of a

person for, an evasion, or an attempted evasion, of a

taxation law; or



Division 2 Suspicious matters

Section 41


(ii) may be relevant to investigation of, or prosecution of a

person for, an evasion, or an attempted evasion, of a law

of a State or Territory that deals with taxation; or

(iii) may be relevant to investigation of, or prosecution of a

person for, an offence against a law of the

Commonwealth or of a State or Territory; or

(iv) may be of assistance in the enforcement of the Proceeds

of Crime Act 2002 or regulations under that Act; or

(v) may be of assistance in the enforcement of a law of a

State or Territory that corresponds to the Proceeds of

Crime Act 2002 or regulations under that Act;

(g) at the relevant time or a later time, the reporting entity

suspects on reasonable grounds that the provision, or

prospective provision, of the service is preparatory to the

commission of an offence covered by paragraph (a), (b) or (c)

of the definition of financing of terrorism in section 5;

(h) at the relevant time or a later time, the reporting entity



provision, of the service may be relevant to the investigation

of, or prosecution of a person for, an offence covered by

paragraph (a), (b) or (c) of the definition of financing of

terrorism in section 5;

(i) at the relevant time or a later time, the reporting entity

suspects on reasonable grounds that the provision, or

prospective provision, of the service is preparatory to the

commission of an offence covered by paragraph (a) or (b) of

the definition of money laundering in section 5;

(j) at the relevant time or a later time, the reporting entity



provision, of the service may be relevant to the investigation

of, or prosecution of a person for, an offence covered by

paragraph (a) or (b) of the definition of money laundering in

section 5.

Report

(2) If a suspicious matter reporting obligation arises for a reporting

entity in relation to a person, the reporting entity must give the

AUSTRAC CEO a report about the matter within:



Suspicious matters Division 2

Section 42


(a) if paragraph (1)(d), (e), (f), (i) or (j) applies—3 business days

after the day on which the reporting entity forms the relevant

suspicion; or

(b) if paragraph (1)(g) or (h) applies—24 hours after the time

when the reporting entity forms the relevant suspicion.

(3) A report under subsection (2) must:

(a) be in the approved form; and

(b) contain such information relating to the matter as is specified

in the AML/CTF Rules; and

(c) contain a statement of the grounds on which the reporting

entity holds the relevant suspicion.

Note 1: For additional rules about reports, see section 244.

Note 2: Section 49 deals with the provision of further information, and the production of documents, by the reporting entity.

Civil penalty


Reasonable grounds for suspicion

(5) The AML/CTF Rules may specify matters that are to be taken into

account in determining whether there are reasonable grounds for a

reporting entity to form a suspicion of a kind mentioned in

paragraph (1)(d), (e), (f), (g), (h), (i) or (j).


42 Exemptions

(1) This Division does not apply to a designated service that is of a

kind specified in the AML/CTF Rules.


Division does not apply to a designated service that is of a kind


(3) This Division does not apply to a designated service that is

provided in circumstances specified in the AML/CTF Rules.



Division 2 Suspicious matters

Section 42



Division does not apply to a designated service that is provided in



provided by a reporting entity at or through a permanent

establishment of the entity in a foreign country, other than a service

covered by item 32A of table 1 in section 6.



Threshold transactions Division 3

Section 43


Division 3—Threshold transactions

43 Reports of threshold transactions

Scope


(a) the reporting entity commences to provide, or provides, a

designated service to a customer; and

(b) the provision of the service involves a threshold transaction.

Report

(2) The reporting entity must, within 10 business days after the day on

which the transaction takes place, give the AUSTRAC CEO a

report of the transaction.



(b) contain such information relating to the transaction as is



Note 2: Section 49 deals with the provision of further information, and the production of documents, by the reporting entity.

Civil penalty


44 Exemptions

(1) This Division does not apply to a designated service that is of a

kind specified in the AML/CTF Rules.


Division does not apply to a designated service that is of a kind



provided in circumstances specified in the AML/CTF Rules.



Division 3 Threshold transactions

Section 44



Division does not apply to a designated service that is provided in



provided by a reporting entity at or through a permanent

establishment of the entity in a foreign country, other than a service

covered by item 32A of table 1 in section 6.

(6) This Division does not apply to a designated service covered by





International funds transfer instructions Division 4

Section 45


Division 4—International funds transfer instructions

45 Reports of international funds transfer instructions

Scope

(1) This section applies to a person if:

(a) the person is:

(i) the sender of an international funds transfer instruction

transmitted out of Australia; or

(ii) the recipient of an international funds transfer

instruction transmitted into Australia; and

(b) if the regulations provide that this paragraph is applicable—

the total amount or value that is to be, or is, transferred is not

less than the amount specified in the regulations; and

(c) such other conditions (if any) as are set out in the AML/CTF

Rules are satisfied.

Note: International funds transfer instruction is defined by section 46.

Report

(2) The person must, within 10 business days after the day on which

the instruction was sent or received by the person, give the

AUSTRAC CEO a report about the instruction.



(b) contain such information relating to the matter as is specified

in the AML/CTF Rules.

Note: For additional rules about reports, see section 244.

Civil penalty


Funds transfer chain etc.

(5) For the purposes of this section, it is immaterial whether the person

sent or received the international funds transfer instruction in the

capacity of interposed institution in a funds transfer chain.



Division 4 International funds transfer instructions

Section 46


Note: For funds transfer chain, see subsection 64(2).

Exemptions

(6) This section does not apply to an international funds transfer

instruction that is of a kind specified in the AML/CTF Rules.

(7) This section does not apply to an international funds transfer

instruction that is sent or received in circumstances specified in the

AML/CTF Rules.

46 International funds transfer instruction

For the purposes of this Act, the following table defines

international funds transfer instruction:

International funds transfer instruction

Item Type of instruction The instruction is an international

funds transfer instruction if ...

1 electronic funds transfer instruction (a) the instruction is accepted at or

through a permanent

establishment of the ordering

institution in Australia; and

(b) the transferred money is to be, or

is, made available to the payee at

or through a permanent

establishment of the beneficiary

institution in a foreign country

2 electronic funds transfer instruction (a) the instruction is accepted at or

through a permanent

establishment of the ordering

institution in a foreign country;

and

(b) the transferred money is to be, or

is, made available to the payee at

or through a permanent

establishment of the beneficiary

institution in Australia



International funds transfer instructions Division 4

Section 46


International funds transfer instruction

Item Type of instruction The instruction is an international

funds transfer instruction if ...

3 instruction given by a transferor

entity for the transfer of money or

property under a designated


(a) the instruction is accepted at or

through a permanent

establishment of a non-financier

in Australia; and

(b) the money or property is to be, or

is, made available to the ultimate

transferee entity at or through a

permanent establishment of a

person in a foreign country

4 instruction given by a transferor

entity for the transfer of money or

property under a designated


(a) the instruction is accepted at or

through a permanent

establishment of a person in a

foreign country; and

(b) the money or property is to be, or

is, made available to the ultimate

transferee entity at or through a

permanent establishment of a

non-financier in Australia



Division 5 AML/CTF compliance reports

Section 47


Division 5—AML/CTF compliance reports

47 AML/CTF compliance reports

Scope

(1) This section applies if the AML/CTF Rules provide that, for the

purposes of this section:

(a) a specified period is a reporting period; and

(b) a specified period beginning at the end of a reporting period

is the lodgment period for that reporting period.

A period specified under paragraph (a) or (b) may be a recurring

period.

Report

(2) A reporting entity must, within the lodgment period for a reporting

period, give the AUSTRAC CEO a report relating to the reporting

entity’s compliance with this Act, the regulations and the

AML/CTF Rules during the reporting period.



(b) contain such information as is required by the approved form.


Civil penalty


Exemption

(5) This section does not apply to a reporting entity if all of the

designated services provided by the reporting entity are covered by





AML/CTF compliance reports Division 5

Section 48



(6) If a reporting entity is a member of a designated business group,



(7) If 2 or more reporting entities are members of a designated

business group, reports under subsection (2) relating to those

reporting entities may be set out in the same document.

Different reporting entities

(8) AML/CTF Rules made for the purposes of this section may make

different provision with respect to different reporting entities. This

does not limit subsection 33(3A) of the Acts Interpretation Act

1901.

48 Self-incrimination

(1) A person is not excused from giving a report under section 47 on

the ground that the report might tend to incriminate the person or

expose the person to a penalty.

(2) However:

(a) the report given; or

(b) giving the report;

is not admissible in evidence against the person:

(c) in civil proceedings other than:

(i) proceedings under section 175 for a contravention of

subsection 47(2); or

(ii) proceedings under the Proceeds of Crime Act 2002 that

relate to this Act; or

(d) in criminal proceedings other than:

(i) proceedings for an offence against section 136 that

relates to section 47; or

(ii) proceedings for an offence against section 137.1 of the

Criminal Code that relates to section 47 of this Act.




Section 49



49 Further information to be given to the AUSTRAC CEO etc.

(1) If a reporting entity communicates information to the AUSTRAC

CEO under section 41, 43 or 45, then:


(b) the Commissioner of the Australian Federal Police; or

(c) the Chief Executive Officer of the Australian Crime

Commission; or

(d) the Commissioner of Taxation; or

(e) the Chief Executive Officer of Customs; or

(f) the Integrity Commissioner; or

(g) an investigating officer who is carrying out an investigation

arising from, or relating to the matters mentioned in, the

information;

may, by written notice given to the reporting entity or any other

person, require the reporting entity or other person:

(h) to give such further information as is specified in the notice,

within the period and in the manner specified in the notice, to

the extent to which the reporting entity or other person has

that information; or

(i) to produce, within the period and in the manner specified in

the notice, such documents as are:

(i) specified in the notice; and

(ii) relevant to the matter to which the communication

under section 41, 43 or 45 relates; and

(iii) in the possession or control of the reporting entity or

other person.

(1A) A person (the issuer) must not give a notice under subsection (1) to

another person (the recipient) unless the issuer reasonably believes

that the recipient has knowledge of the information, or possession

or control of the document, that is specified in the notice.

(1B) The period specified in the notice for giving the information or

document must be at least 14 days after the notice is given unless:




Section 49A


(a) the recipient is the reporting entity who communicated

information to the AUSTRAC CEO under section 41, 43 or

45; or

(b) both of the following apply:

(i) the issuer considers that specifying a shorter period is

necessary;

(ii) the shorter period specified is reasonable in the

circumstances.

Compliance

(2) A person must comply with a notice under subsection (1).

Civil penalty


49A AML/CTF Rules may make provision in relation to reports by

registered remittance affiliates

(1) The AML/CTF Rules may make provision for and in relation to

reports required by this Part to be given by a reporting entity that is

a registered remittance affiliate of a registered remittance network

provider.

(2) Without limiting subsection (1), the AML/CTF Rules may provide:

(a) that an obligation imposed by this Part upon a registered

remittance affiliate of a registered remittance network

provider to provide a report is taken instead, or in addition, to

be an obligation imposed upon the registered remittance

network provider; and

(b) that an obligation imposed by this Part on a registered

remittance affiliate of a registered remittance network

provider may be discharged by the registered remittance


(c) that a report required to be provided as mentioned in

paragraph (a) must, or may, be given by the registered

remittance network provider in the manner specified in the

AML/CTF Rules.




Section 50


50 Request to obtain information about the identity of holders of

foreign credit cards and foreign debit cards

Scope


(a) under section 49, the AUSTRAC CEO or the Commissioner

of Taxation has required the reporting entity to give

information about the identity of:

(i) the holder of, or a signatory to, a particular credit card

account; or

(ii) the holder of, or a signatory to, a particular debit card

account; and

(b) the account relates to a credit card, or a debit card, that was

issued by a person (the card issuer) outside Australia; and

(c) the reporting entity does not have that information.

Direction to reporting entity

(2) The AUSTRAC CEO or the Commissioner of Taxation may, by

written notice given to the reporting entity, direct the reporting

entity to give the card issuer a request, in a form specified in the

notice, to give the information to the reporting entity.

(3) The reporting entity must comply with the direction within 10

business days after the day on which the direction is given.

Report by reporting entity

(4) If the reporting entity gives the card issuer a request under

subsection (2) that was directed by the AUSTRAC CEO, the

reporting entity must, within:

(a) 20 business days after the day on which the subsection (2)

direction was given; or

(b) if the AUSTRAC CEO, by written notice given to the

reporting entity, allows a longer period—that longer period;

give the AUSTRAC CEO a report about the card issuer’s response,

or lack of response, to the request.




Section 51


(5) If the reporting entity gives the card issuer a request under

subsection (2) that was directed by the Commissioner of Taxation,

the reporting entity must, within:



(b) if the Commissioner of Taxation, by written notice given to

the reporting entity, allows a longer period—that longer

period;

give the Commissioner of Taxation a report about the card issuer’s

response, or lack of response, to the request.

(6) A report under subsection (4) or (5) must:


(b) in a case where the card issuer has given the information to

the reporting entity—contain the information; and

(c) contain such other information (if any) relating to the matter

as is required by the approved form.

Note: For additional rules about reports given to the AUSTRAC CEO, see section 244.

Civil penalty


51 Division 400 and Chapter 5 of the Criminal Code

If a person, or an officer, employee or agent of a person,

communicates or gives information under section 41, 43, 45 or 49,

the person, officer, employee or agent is taken, for the purposes of

Division 400 and Chapter 5 of the Criminal Code, not to have been

in possession of that information at any time.


Part 3A Reporting Entities Roll

Section 51A


Part 3A—Reporting Entities Roll

51A Simplified outline


• Providers of designated services must be entered on the

Reporting Entities Roll.

51B Reporting entities must enrol

(1) If a person’s name is not entered on the Reporting Entities Roll, the

person must:

(a) if the person provided a designated service during the period

of 28 days before the commencement of this section—apply

in writing to the AUSTRAC CEO under subsection 51E(1)

within 28 days after the commencement of this section; or

(b) if the person commences to provide a designated service after

the commencement of this section—apply in writing to the

AUSTRAC CEO under subsection 51E(1) within 28 days

after commencing to provide the designated service.

(2) Subsection (1) does not apply if the person:

(a) has applied under subsection 51E(1) in relation to the

provision of another designated service; and

(b) has not since requested under section 51G that the

AUSTRAC CEO remove the person’s name and enrolment

details from the Reporting Entities Roll.

Civil penalty


51C Reporting Entities Roll

(1) The AUSTRAC CEO must maintain a roll for the purposes of this

Part, to be known as the Reporting Entities Roll.


Reporting Entities Roll Part 3A

Section 51D


(2) The AUSTRAC CEO may maintain the Reporting Entities Roll by

electronic means.

(3) The Reporting Entities Roll is not a legislative instrument.

(4) The AML/CTF Rules may make provision for and in relation to

either or both of the following:

(a) the correction of entries in the Reporting Entities Roll;

(b) any other matter relating to the administration or operation of

the Reporting Entities Roll, including the removal of names

and enrolment details from the Reporting Entities Roll.

51D Enrolment

If a person applies to the AUSTRAC CEO under subsection 51E(1)

and the person’s name is not already entered on the Reporting

Entities Roll, the AUSTRAC CEO must enter on the Reporting

Entities Roll:

(a) the person’s name; and

(b) the person’s enrolment details.

51E Applications for enrolment

(1) A person may apply in writing to the AUSTRAC CEO for

enrolment as a reporting entity.

(2) The application must:

(a) be in accordance with the approved form, or in a manner

specified in the AML/CTF Rules; and

(b) contain the information required by the AML/CTF Rules.

51F Enrolled persons to advise of change in enrolment details

(1) A person who is enrolled under this Part must advise the

AUSTRAC CEO, in accordance with subsection (2), of any change

in the person’s enrolment details that is of a kind specified in the

AML/CTF Rules.

(2) A person who is required by subsection (1) to advise the

AUSTRAC CEO of a change in enrolment details must do so:

(a) within 14 days of the change arising; and


Part 3A Reporting Entities Roll

Section 51G


(b) in accordance with the approved form, or in a manner


Civil penalty


51G Removal of entries from the Reporting Entities Roll

(1) A person may, in writing, request the AUSTRAC CEO to remove

the person’s name and enrolment details from the Reporting

Entities Roll.

(2) The request must:



(3) The AUSTRAC CEO must consider the request and remove the

person’s name and enrolment details from the Reporting Entities

Roll if the AUSTRAC CEO is satisfied that it is appropriate to do

so, having regard to:

(a) whether the person has ceased to provide designated services;

and

(b) the likelihood of the person providing a designated service in

the financial year beginning after the request is given; and

(c) any outstanding obligations the person has (if any) to provide

a report under any of the following provisions:

(i) section 43 (threshold transaction reports);

(ii) section 45 (international funds transfer instruction

reports);

(iii) section 47 (AML/CTF compliance reports).


Reports about cross-border movements of physical currency and bearer negotiable

instruments Part 4

Introduction Division 1

Section 52


Part 4—Reports about cross-border movements of

physical currency and bearer negotiable

instruments




• Cross-border movements of physical currency must be

reported to the AUSTRAC CEO, a customs officer or a police

officer if the total value moved is above a threshold.

• If a bearer negotiable instrument is produced to a police

officer or a customs officer by a person leaving or arriving in

Australia, the officer may require the person to give a report

about the instrument to the AUSTRAC CEO, a customs

officer or a police officer.


Part 4 Reports about cross-border movements of physical currency and bearer

negotiable instruments

Division 2 Reports about physical currency

Section 53


Division 2—Reports about physical currency

53 Reports about movements of physical currency into or out of

Australia

Offence


(a) either:

(i) the person moves physical currency into Australia; or

(ii) the person moves physical currency out of Australia;

and

(b) the total amount of the physical currency is not less than

$10,000; and

(c) a report in respect of the movement has not been given in

accordance with this section.

Penalty: Imprisonment for 2 years or 500 penalty units, or both.

(2) Strict liability applies to paragraph (1)(c).

Note: For strict liability, see section 6.1 of the Criminal Code.

Civil penalty

(3) A person must not:

(a) move physical currency into Australia; or

(b) move physical currency out of Australia;

if:

(c) the total amount of the physical currency is not less than

$10,000; and

(d) a report in respect of the movement has not been given in

accordance with this section.


Commercial carriers

(5) Subsections (1) and (3) do not apply to a person if:

(a) the person is a commercial passenger carrier; and



instruments Part 4

Reports about physical currency Division 2

Section 54


(b) the physical currency is in the possession of any of the

carrier’s passengers.

(6) Subsections (1) and (3) do not apply to a person if:

(a) the person is a commercial goods carrier; and

(b) the physical currency is carried on behalf of another person;

and

(c) the other person has not disclosed to the carrier that the

goods carried on behalf of the other person include physical

currency.

(7) A person who wishes to rely on subsection (5) or (6) bears an

evidential burden in relation to that matter.

Requirements for reports under this section

(8) A report under this section must:


(b) contain such information relating to the matter being reported

as is specified in the AML/CTF Rules; and

(c) be given to the AUSTRAC CEO, a customs officer or a

police officer; and

(d) comply with the applicable timing rule in subsection 54(1).


Note 2: Division 8 of Part 15 sets out special enforcement powers relating to this section.


54 Timing of reports about physical currency movements

Applicable timing rule

(1) A report under section 53 must be given:

(a) if the movement of the physical currency is to be effected by

a person bringing the physical currency into Australia with

the person—at the time worked out under subsection (2); or

(b) if the movement of the physical currency is to be effected by

a person taking the physical currency out of Australia with

the person—at the time worked out under subsection (3); or





Section 54


(c) if the physical currency is to be taken out of Australia by a

person by consignment of the physical currency:

(i) through the post to a place outside Australia; or

(ii) to another person for carriage to a place outside

Australia by that other person or by a third person;

at any time before the time when the physical currency is

irrevocably committed by the first-mentioned person to the

Australian Postal Corporation or to the other person, as the

case may be; or

(d) in any other case—at any time before the movement of the

physical currency takes place.

Inwards movements

(2) For the purposes of paragraph (1)(a), the applicable time is:

(a) if the person:

(i) moves the physical currency into Australia on an

aircraft or ship; and

(ii) after disembarking, goes to the place at which customs

officers examine baggage;

as soon as the person reaches that place; or

(b) in any other case—the first opportunity after arrival in

Australia that the person has to give the report under

section 53.

Outwards movements

(3) For the purposes of paragraph (1)(b), the applicable time is:

(a) if:

(i) the movement of the physical currency is to be effected

on an aircraft or ship; and

(ii) the person, before embarking, goes to the place at which

customs officers examine passports;

as soon as the person reaches that place; or

(b) in any other case—as soon as the person reaches the customs

officer who is to examine the person’s passport in relation to

the person leaving Australia or, if there is no such

examination, the last opportunity before leaving Australia

that the person has to give the report under section 53.



instruments Part 4

Reports about physical currency Division 2

Section 55


55 Reports about receipts of physical currency from outside

Australia

Offence


(a) the person receives physical currency moved to the person

from outside Australia; and

(b) at the time of the receipt, the total amount of the physical

currency is not less than $10,000; and

(c) a report in respect of the movement has not been made in

accordance with section 53 before the movement; and

(d) a report in respect of the receipt is not given in accordance

with this section before the end of the period of 5 business

days beginning on the day of the receipt.


(2) Strict liability applies to paragraphs (1)(c) and (d).


Civil penalty

(3) A person must not receive physical currency moved to the person

from outside Australia if:

(a) at the time of the receipt, the total amount of the physical

currency is not less than $10,000; and

(b) a report in respect of the movement has not been made in

accordance with section 53 before the movement; and

(c) a report in respect of the receipt is not given in accordance

with this section before the end of the period of 5 business

days beginning on the day of the receipt.



(5) A report under this section must:



as is specified in the AML/CTF Rules; and





Section 56


(c) be given to the AUSTRAC CEO, a customs officer or a

police officer.



56 Obligations of customs officers and police officers

If a report under section 53 or 55 is given to a customs officer or a

police officer, the officer must, within 5 business days after the day

of receipt of the report, forward the report to the AUSTRAC CEO.

57 Movements of physical currency out of Australia

(1) This section sets out the 2 situations in which a person moves

physical currency out of Australia.

(2) For the purposes of this Act, a person moves physical currency out

of Australia if the person takes or sends the physical currency out

of Australia.

(3) For the purposes of this Act, if a person:

(a) arranges to leave Australia on an aircraft or ship; and

(b) for the purpose of leaving Australia, goes towards an aircraft

or ship through an embarkation area; and

(c) either:

(i) takes physical currency into the embarkation area; or

(ii) has physical currency in his or her baggage; and

(d) does not give a report about the physical currency when at

the place in the embarkation area at which customs officers

examine passports;

the person is taken to have moved the physical currency out of

Australia.

58 Movements of physical currency into Australia

For the purposes of this Act, a person moves physical currency into

Australia if the person brings or sends the physical currency into

Australia.



instruments Part 4

Reports about bearer negotiable instruments Division 3

Section 59


Division 3—Reports about bearer negotiable instruments

59 Reports about movements of bearer negotiable instruments into

or out of Australia

Reporting requirement

(1) If, under section 200:

(a) a person produces to a police officer or a customs officer one

or more bearer negotiable instruments that the person has

with him or her; or

(b) a police officer or a customs officer conducts an examination

or search and finds one or more bearer negotiable

instruments that a person has with him or her;

the officer may require the person to give the AUSTRAC CEO, a

customs officer or a police officer a report about the bearer

negotiable instruments immediately.





as is specified in the AML/CTF Rules.


Offence


(a) the person is subject to a requirement under subsection (1);

and

(b) the person engages in conduct; and

(c) the person’s conduct breaches the requirement.


Civil penalty

(4) If a person is subject to a requirement under subsection (1), the

person must not engage in conduct that breaches the requirement.




Division 3 Reports about bearer negotiable instruments

Section 60



Note: Division 8 of Part 15 sets out special enforcement powers relating to this section.

60 Obligations of customs officers and police officers

If a report under section 59 is given to a customs officer or a police

officer, the officer must, within 5 business days after the day of

receipt of the report, forward the report to the AUSTRAC CEO.



instruments Part 4

Information about reporting obligations Division 4

Section 61


Division 4—Information about reporting obligations

61 Power to affix notices about reporting obligations

Scope

(1) This section applies to a written notice:

(a) that relates to reporting obligations under this Part; and

(b) the form and contents of which are specified in the

AML/CTF Rules.

Power to affix notices

(2) A customs officer may affix, or arrange for another person to affix,

one or more notices:

(a) on any part of an aircraft or ship; or

(b) in any other place specified in the AML/CTF Rules.

Offence


(a) a notice has been affixed under this section; and


(c) the person’s conduct results in:

(i) interference with the notice; or

(ii) the removal of the notice; or

(iii) defacement of the notice.


(4) Subsection (3) does not apply if the person’s conduct is authorised

by the AUSTRAC CEO or the Chief Executive Officer of

Customs.


(5) An offence against subsection (3) is an offence of strict liability.





Division 4 Information about reporting obligations

Section 62


62 Notice about reporting obligations to be given to travellers to

Australia

Scope

(1) This section applies to a written notice:

(a) that relates to reporting obligations under this Part; and

(b) the form and contents of which are specified in the

AML/CTF Rules.

Notice to be given to travellers

(2) If an aircraft or ship leaves a place outside Australia to travel to a

place in Australia without stopping at any other place outside

Australia, the person in charge of the aircraft or ship must:

(a) give a copy of the notice, or communicate the information

contained in the notice in the manner prescribed by the

AML/CTF Rules, to all persons travelling on the aircraft or

ship (including members of the crew); or

(b) cause a copy of the notice to be given, or cause to be

communicated the information contained in the notice in the

manner prescribed by the AML/CTF Rules, to all persons

travelling on the aircraft or ship (including members of the

crew).

Offence



and




(4) An offence against subsection (3) is an offence of strict liability.



Electronic funds transfer instructions Part 5


Section 63


Part 5—Electronic funds transfer instructions




• Electronic funds transfer instructions must include certain

information about the origin of the transferred money.


Part 5 Electronic funds transfer instructions

Division 2 2 or more institutions involved in the transfer

Section 64


Division 2—2 or more institutions involved in the transfer

64 Electronic funds transfer instructions—2 or more institutions

involved in the transfer

Scope

(1) This section applies to:



(b) a multiple-institution same-person electronic funds transfer

instruction.

Note: For exemptions, see section 67.

Funds transfer chain

(2) For the purposes of this Act:

(a) the following persons are taken to form a funds transfer

chain:

(i) the ordering institution;

(ii) each person (if any) interposed between the ordering

institution and the beneficiary institution;

(iii) the beneficiary institution; and

(b) each person in the chain is to be known as an institution.

Obligations of ordering institution

(3) If the transfer instruction is accepted by the ordering institution at

or through a permanent establishment of the ordering institution in

Australia, then, before the ordering institution:

(a) passes on the transfer instruction; or

(b) dispatches the transfer instruction; or

(c) takes any other action to carry out the transfer instruction;

the ordering institution must obtain the complete payer

information.

Note: For complete payer information, see section 71.



2 or more institutions involved in the transfer Division 2

Section 64


(4) If:

(a) the transfer instruction is accepted by the ordering institution

at or through a permanent establishment of the ordering


(b) the AUSTRAC CEO, by written notice given to the ordering

institution, requests the ordering institution to give the

complete payer information to the AUSTRAC CEO;

the ordering institution must comply with the request within:

(c) if the request was given to the ordering institution within 6

months after the acceptance of the transfer instruction by the

ordering institution—3 business days after the day on which

the request was given; or

(d) otherwise—10 business days after the day on which the

request was given.


(5) If:




(b) the beneficiary institution, by written notice given to the

ordering institution, requests the ordering institution to give

the complete payer information to the beneficiary institution;







request was given.


(6) If:

(a) the ordering institution is in the funds transfer chain; and

(b) the transfer instruction is accepted by the ordering institution


institution in Australia;

then, before the ordering institution passes on the transfer

instruction to another person in the chain, the ordering institution




Section 64


must ensure that the instruction includes the required transfer

information.

Note: For required transfer information, see section 70.

Obligations of interposed institutions in the funds transfer chain

(7) If:

(a) an institution is in the funds transfer chain; and

(b) either:

(i) the institution is an interposed institution and the

transfer instruction is passed on to the institution at or

through a permanent establishment of the institution in

Australia; or

(ii) the institution is an interposed institution and the

transfer instruction is to be passed on by the institution

at or through a permanent establishment of the


(c) either:

(i) the transfer instruction is accepted by the ordering

institution at or through a permanent establishment of

the ordering institution in Australia; or

(ii) the making available by the beneficiary institution of the

transferred money would take place at or through a

permanent establishment of the beneficiary institution in

Australia; and

(d) some or all of the required transfer information was passed

on to the institution by another institution in the funds

transfer chain;

then:

(e) if the transfer instruction was accepted by the ordering

institution at or through a permanent establishment of the

ordering institution in a foreign country—before passing on

the transfer instruction to another institution in the chain, the

interposed institution must ensure that the instruction

includes the tracing information; or

(f) in any other case—before passing on the transfer instruction

to another institution in the chain, the interposed institution

must ensure that the instruction includes so much of the

required transfer information as was passed on to the

interposed institution as mentioned in paragraph (d).




Section 65


Note 1: For required transfer information, see section 70.

Note 2: For tracing information, see section 72.

Civil penalty

(8) Subsections (3), (4), (5), (6) and (7) are civil penalty provisions.

65 Request to include customer information in certain international

electronic funds transfer instructions

Scope




(b) a multiple-institution same-person electronic funds transfer

instruction;

if:

(c) the instruction is accepted at or through a permanent

establishment of the ordering institution in a foreign country;

and

(d) the transferred money is to be, or is, made available to the

payee at or through a permanent establishment of the

beneficiary institution in Australia.


Direction to beneficiary institution

(2) If:

(a) the beneficiary institution has received 2 or more electronic

funds transfer instructions from a particular ordering

institution; and

(b) at least one of the electronic funds transfer instructions does

not include the required transfer information; and

(c) the AUSTRAC CEO, by written notice given to the

beneficiary institution, directs the beneficiary institution to

give the ordering institution a request (in a form specified in

the notice) to include required transfer information in all

future electronic funds transfer instructions passed on by the

ordering institution to the beneficiary institution;




Section 65


the beneficiary institution must comply with the direction within

10 business days after the day on which the direction is given.

Report by beneficiary institution

(3) If the beneficiary institution gives the ordering institution a request

under subsection (2), the beneficiary institution must, within:



(b) if the AUSTRAC CEO, by written notice given to the

beneficiary institution, allows a longer period—that longer

period;

give the AUSTRAC CEO a report about the ordering institution’s

response, or lack of response, to the request.



(b) contain such information relating to the matter as is required

by the approved form.


Civil penalty


Powers of beneficiary institution

(6) If an electronic funds transfer instruction received by the

beneficiary institution does not include the required transfer

information, the beneficiary institution may, for the purpose set out

in subsection (7), refuse to make the transferred money available to

the payee until the required transfer information is passed on to the

beneficiary institution.

(7) The purpose referred to in subsection (6) is to:

(a) identify; or

(b) mitigate; or

(c) manage;

the risk the beneficiary institution may reasonably face that the

making available by the beneficiary institution of transferred

money at or through a permanent establishment of the beneficiary




Section 65


institution in Australia might (whether inadvertently or otherwise)

involve or facilitate:

(d) money laundering; or

(e) financing of terrorism.

Protection from liability

(8) An action, suit or proceeding (whether criminal or civil) does not

lie against:

(a) the beneficiary institution; or

(b) an officer, employee or agent of the beneficiary institution

acting in the course of his or her office, employment or

agency;

in relation to anything done, or omitted to be done, in good faith by

the beneficiary institution, officer, employee or agent in the

exercise, or purported exercise, of the power conferred by

subsection (6).



Division 3 Only one institution involved in the transfer

Section 66


Division 3—Only one institution involved in the transfer

66 Electronic funds transfer instructions—only one institution

involved in the transfer

Scope


(a) a same-institution person-to-person electronic funds transfer

instruction; or

(b) a same-institution same-person electronic funds transfer

instruction if the instruction is to be carried out otherwise

than by way of transferring money from an account held by

the payer with the ordering institution in a particular country

to another account held by the payer with the ordering

institution in that country.


Obligations of beneficiary institution

(2) If:



institution in Australia; or

(b) the making available by the beneficiary institution of the



Australia;

then, before the beneficiary institution makes the transferred

money available to the payee, the beneficiary institution must

obtain the complete payer information.


(3) If:

(a) either:

(i) the transfer instruction is accepted by the ordering

institution at or through a permanent establishment of

the ordering institution in Australia; or



Only one institution involved in the transfer Division 3

Section 66


(ii) the making available by the beneficiary institution of the



Australia; and

(b) the AUSTRAC CEO, by written notice given to the ordering

institution, requests the institution to give the complete payer

information to the AUSTRAC CEO;







request was given.


Civil penalty





Section 67



67 Exemptions

Approved third-party bill payment systems

(1) This Part does not apply to an instruction that arises from the use

of an approved third-party bill payment system.

Debit cards and credit cards

(2) This Part does not apply to an instruction that arises from the use

of a debit card or a credit card if:

(a) the use does not involve obtaining a cash advance; and

(b) the number of the card is included in the instruction; and

(c) the card is not of a kind specified in the AML/CTF Rules;

and

(d) the use does not take place in circumstances of a kind


(2A) This Part does not apply to an instruction that arises from the use

of a debit card or a credit card at a branch of a financial institution

if:

(a) the number of the card is included in the instruction; and

(b) the card is not of a kind specified in the AML/CTF Rules;

and

(c) the use does not take place in circumstances of a kind


Cheques

(3) This Part does not apply to an instruction given by way of a cheque

unless the cheque is of a kind specified in the AML/CTF Rules.

ATMs

(4) This Part does not apply to an instruction given by the use of an

ATM if:

(a) the ATM is not of a kind specified in the AML/CTF Rules;

and




Section 68


(b) the use does not take place in circumstances of a kind


Merchant terminals

(4A) This Part does not apply to an instruction given by way of the

operation of a merchant terminal if:

(a) the operation is authorised by a financial institution; and

(b) the merchant terminal is not of a kind specified in the

AML/CTF Rules; and

(c) the operation does not take place in circumstances of a kind


Inter-financial institution transfers

(5) This Part does not apply to a transfer of money between 2 financial

institutions if each financial institution acts on its own behalf.

Prescribed instructions

(6) This Part does not apply to an instruction of a kind prescribed by

the AML/CTF Rules.

68 Defence of relying on information supplied by another person

Scope

(1) This section applies to section 175 proceedings for a contravention

of a civil penalty provision of Division 2 or 3.

Defence

(2) In the proceedings, it is a defence if the defendant proves that:

(a) the contravention in respect of which the proceedings were

instituted was due to reasonable reliance on information

given by another person; and

(b) the other person did not give the information in the other

person’s capacity as an officer, employee or agent of the

person who relied on the information.




Section 69



If a person, or an officer, employee or agent of a person,

communicates or gives information to the AUSTRAC CEO under

section 64 or 66, the person, officer, employee or agent is taken,

for the purposes of Division 400 and Chapter 5 of the Criminal

Code, not to have been in possession of that information at any

time.

70 Required transfer information

For the purposes of the application of this Act to an electronic

funds transfer instruction, the required transfer information is:

(a) if:

(i) the transfer instruction is of a kind specified in the

AML/CTF Rules; or

(ii) the ordering institution accepts the transfer instruction

in circumstances specified in the AML/CTF Rules; or

(iii) the transfer instruction is, or is to be, passed on, or

carried out, in circumstances specified in the AML/CTF

Rules;

the tracing information; or

(b) if:

(i) the ordering institution accepts the transfer instruction at

or through a permanent establishment of the ordering


(ii) the beneficiary institution makes, or is to make, the

money available at or through a permanent

establishment of the beneficiary institution in another

country; and

(iii) the transfer instruction is a batched electronic funds

transfer instruction; and

(iv) paragraph (a) does not apply;

the tracing information; or

(c) if:









Section 71


establishment of the beneficiary institution in another

country; and

(iii) the transfer instruction is not a batched electronic funds


(iv) paragraph (a) does not apply;

the complete payer information; or

(d) if:






establishment of the beneficiary institution in Australia;

and

(iii) paragraph (a) does not apply;

the tracing information.

Note 1: For complete payer information, see section 71.

Note 2: For tracing information, see section 72.

71 Complete payer information


funds transfer instruction, the complete payer information is:

(a) the name of the payer; and

(b) one of the following:

(i) the payer’s full business or residential address (not

being a post office box);

(ii) a unique identification number given to the payer by the

Commonwealth or an authority of the Commonwealth

(for example, an Australian Business Number or an

Australian Company Number);

(iii) a unique identification number given to the payer by the

government of a foreign country;

(iv) the identification number given to the payer by the

ordering institution;

(v) if the payer is an individual—the payer’s date of birth,

the country of the payer’s birth and the town, city or

locality of the payer’s birth; and




Section 72


(c) if the money is, or is to be, transferred from a single account

held by the payer with the ordering institution in Australia—

the account number for the account; and

(d) if paragraph (c) does not apply—either:

(i) a unique reference number for the transfer instruction;

or

(ii) if the money is, or is to be, transferred from a single

account held by the payer with the ordering

institution—the account number for the account.

72 Tracing information


funds transfer instruction, the tracing information is:

(a) if the money is to be transferred from an account held by the

payer with the ordering institution—the account number; or

(b) in any case—a unique reference number for the transfer

instruction.


The Remittance Sector Register Part 6

Simplified outline Division 1

Section 73


Part 6—The Remittance Sector Register

Division 1—Simplified outline



• This Part provides for a tiered system of registration for

providers of registrable remittance network services and

providers of registrable designated remittance services.

• Division 2 sets out offences and civil penalties in relation to

the provision of registrable remittance network services and

registrable designated remittance services by persons who are

not registered.

• Division 3 requires the AUSTRAC CEO to maintain the

Remittance Sector Register and sets out the process of

applying for registration.

• Division 4 provides for review of decisions.


Part 6 The Remittance Sector Register

Division 2 Restrictions on providing certain remittance services

Section 74


Division 2—Restrictions on providing certain remittance

services

74 Unregistered persons must not provide certain remittance

services

Registrable remittance network services

(1) A person (the first person) must not provide a registrable

remittance network service to another person if:

(a) the first person is not a registered remittance network

provider; or

(b) the first person is a registered remittance network provider,

but the person to whom the service is provided is not a

registered remittance affiliate of the first person.

Registrable designated remittance services—independents

(1A) A person must not provide a registrable designated remittance

service if:

(a) the person provides the service other than as part of a

remittance network operated by a registered remittance


(b) the person is not a registered independent remittance dealer.

Registrable designated remittance services—affiliates

(1B) A person must not provide a registrable designated remittance

service if:

(a) the person provides the service as part of a remittance

network operated by a registered remittance network

provider; and

(b) the person is not a registered remittance affiliate of the

registered remittance network provider.

Breach of conditions

(1C) A person must not breach a condition to which the registration of

the person as any of the following is subject:

(a) a remittance network provider;



Restrictions on providing certain remittance services Division 2

Section 74


(b) an independent remittance dealer;


provider.

Offences


(a) the person is subject to a requirement under subsection (1),

(1A), (1B) or (1C); and




(3) Strict liability applies to paragraphs (2)(b) and (c).




(1A), (1B) or (1C); and


(c) the person’s conduct breaches the requirement; and

(d) the AUSTRAC CEO previously:

(i) gave the person a direction under subsection 191(2) in

relation to subsection (1), (1A), (1B) or (1C) of this

section; or

(ii) accepted an undertaking given by the person under

section 197 in relation to subsection (1), (1A), (1B) or

(1C) of this section; and

(e) that was the only occasion on which the AUSTRAC CEO

previously gave such a direction to, or accepted such an

undertaking from, the person.

Penalty: Imprisonment for 4 years or 1,000 penalty units, or both.





(1A), (1B) or (1C); and



Division 2 Restrictions on providing certain remittance services

Section 74




(d) the AUSTRAC CEO previously:

(i) gave the person a direction under subsection 191(2) in

relation to subsection (1), (1A), (1B) or (1C) of this

section; or

(ii) accepted an undertaking given by the person under

section 197 in relation to subsection (1), (1A), (1B) or

(1C) of this section; and

(e) that was not the only occasion on which the AUSTRAC CEO

previously gave such a direction to, or accepted such an

undertaking from, the person.






(1A), (1B) or (1C); and



(d) either:

(i) the person had previously been convicted of an offence

against subsection (2), (4) or (6), and that conviction has

not been set aside or quashed; or

(ii) an order had previously been made against the person

under section 19B of the Crimes Act 1914 in respect of

an offence against subsection (2), (4) or (6), and that

order has not been set aside.




Civil penalty

(10) Subsections (1), (1A), (1B) and (1C) are civil penalty provisions.



Registration of persons Division 3

Section 75


Division 3—Registration of persons

75 Remittance Sector Register

(1) The AUSTRAC CEO must maintain a register for the purposes of

this Part, to be known as the Remittance Sector Register.

(2) The AUSTRAC CEO may maintain the Remittance Sector

Register by electronic means.

(3) The Remittance Sector Register is not a legislative instrument.

(4) The AML/CTF Rules may make provision for and in relation to the

following:

(a) the correction of entries in the Remittance Sector Register;

(b) the publication of the Remittance Sector Register in whole or

part, or of specified information entered on the Remittance

Sector Register;

(c) any other matter relating to the administration or operation of

the Remittance Sector Register.

75A Information to be entered on the Remittance Sector Register

(1) If the AUSTRAC CEO decides to register a person under

subsection 75C(2), the AUSTRAC CEO must enter the following

details on the Remittance Sector Register:

(a) the name of the person;

(b) whether the person is registered as:




provider;

(c) if the person is registered as a remittance affiliate of a

registered remittance network provider—the name of the

registered remittance network provider;

(d) any conditions to which the registration of the person is

subject;

(e) the date on which the registration takes effect;

(f) the registrable details in relation to the person.



Division 3 Registration of persons

Section 75B


(2) To avoid doubt, nothing in this Part prevents separate entries being

entered on the Remittance Sector Register in relation to the same

person in different capacities.

75B Applications for registration

(1) A person may apply in writing to the AUSTRAC CEO for

registration as:

(a) a remittance network provider; or

(b) an independent remittance dealer; or

(c) subject to subsection (5)—a remittance affiliate of a


(2) A registered remittance network provider may apply in writing to

the AUSTRAC CEO for another person to be registered as a

remittance affiliate of the registered remittance network provider.

(3) An application under subsection (1) or (2) must:



(4) Without limiting the information that the AML/CTF Rules may

require under paragraph (3)(b), the AML/CTF Rules may require

information relating to the matters mentioned in paragraph

75C(2)(a) or in Rules made under paragraph 75C(2)(b) (these

provisions deal with matters to which the AUSTRAC CEO must

have regard in deciding whether to register a person).

(5) A person may apply for registration as a remittance affiliate of a

registered remittance network provider as mentioned in

paragraph (1)(c) only if:

(a) either:

(i) when the person makes the application, the person is a

registered independent remittance dealer; or

(ii) the application is made in conjunction with an

application by the person for registration as a registered

independent remittance dealer; and

(b) the registered remittance network provider has consented to

the making of the application.




Section 75C


Deemed refusal in certain circumstances

(6) If the AUSTRAC CEO has not made a decision on the application

within the relevant period, the AUSTRAC CEO is taken to have

decided not to register the person at the end of the relevant period.

The relevant period is the period of 90 days beginning:

(a) on the day the application is made; or

(b) if the AUSTRAC CEO requests information under

subsection 75N(1) in relation to the application—on the day

the information is provided.

(7) However, if the AUSTRAC CEO determines in writing that:

(a) the application cannot be dealt with properly within the 90

day period, either because of its complexity or because of

other special circumstances; and

(b) that period is extended by a specified period of not more than

30 days;

the relevant period is that period as so extended. The AUSTRAC

CEO must notify the applicant in writing of the determination

before the end of the 90 day period.

75C Registration by AUSTRAC CEO

When section applies

(1) This section applies if an application has been made under

section 75B for registration of a person.

When AUSTRAC CEO must register a person

(2) The AUSTRAC CEO must decide to register the person in

accordance with the application if the AUSTRAC CEO is satisfied

that it is appropriate to do so, having regard to:

(a) whether registering the person would involve a significant

money laundering, financing of terrorism or people

smuggling risk; and

(b) such other matters (if any) as are specified in the AML/CTF

Rules under this paragraph.




Section 75C


Matters that may be specified in the AML/CTF Rules

(3) Without limiting the matters that the AML/CTF Rules may specify

under paragraph (2)(b), the matters may relate to the following:

(a) offences of which the applicant for registration, a person

proposed to be entered on the Remittance Sector Register as

a remittance affiliate of the applicant, or any other person,

has been charged or convicted under the law of the

Commonwealth, a State or Territory or a foreign country;

(b) the compliance or non-compliance of the applicant, a person

proposed to be entered on the Remittance Sector Register as

a remittance affiliate of the applicant, or any other person,

with this Act or any other law;

(c) the legal and beneficial ownership and control of the

applicant, a person proposed to be entered on the Remittance

Sector Register as a remittance affiliate of the applicant, or

any other person;

(d) the kinds of designated services to be provided by the

applicant or by a person proposed to be entered on the

Remittance Sector Register as a remittance affiliate of the

applicant;

(e) the consent of a person proposed to be entered on the

Remittance Sector Register as a remittance affiliate of the

applicant.

Notice of decision to register

(4) The AUSTRAC CEO must, as soon as practicable after deciding to

register a person, give a written notice to:

(a) the applicant for registration; and

(b) if the application was made by a registered remittance

network provider for another person to be registered as a

remittance affiliate of the registered remittance network

provider—the other person.

Contents of notice of decision to register

(5) A notice under subsection (4) in relation to a decision to register a

person must specify:

(a) whether the person is registered as:





Section 75D




provider; and

(b) the conditions (if any) to which the registration is subject (see

section 75E); and

(c) the date on which the registration takes effect.

Note: The AUSTRAC CEO is required to give notice under subsection 75R(1) or subsection 75S(1) if registration is refused or registration is granted subject to conditions.

75D Spent convictions scheme

The AML/CTF Rules made under paragraph 75B(3)(b) or

75C(2)(b) must not affect the operation of Part VIIC of the Crimes

Act 1914 (which includes provisions that, in certain circumstances,

relieve persons from the requirement to disclose spent convictions

and require persons aware of such convictions to disregard them).

75E Registration may be subject to conditions

(1) The AUSTRAC CEO may, in writing, impose conditions to which

the registration of a person under subsection 75C(2) is subject.

(2) Without limiting the conditions that the AUSTRAC CEO may

impose under subsection (1), the conditions may relate to the

following:

(a) the volume of funds remitted (whether by reference to a

particular time, a particular amount or otherwise);

(b) the destination (however described) of funds remitted;

(c) requiring notification of particular changes in circumstances.

Note: Section 75M imposes a general obligation in relation to notification of changes in circumstances.

75F When registration of a person ceases

(1) The registration of a person ceases at the earliest of the following

times:

(a) when the cancellation of the registration of the person under

section 75G takes effect;




Section 75G


(b) when the entry relating to the registration of the person is

removed from the Remittance Sector Register under

subsection 75K(2);

(c) subject to subsection (2)—3 years after the day on which the

registration took effect;

(d) in the case of an individual—when the individual dies;

(e) in the case of a body corporate—when the body corporate

ceases to exist.

(2) Paragraph (1)(c) is subject to the AML/CTF Rules made under

section 75J (which deals with renewal of registration).

75G Cancellation of registration

(1) The AUSTRAC CEO may cancel the registration of a person if the

AUSTRAC CEO is satisfied that it is appropriate to do so, having

regard to:

(a) whether the continued registration of the person involves, or

may involve, a significant money laundering, financing of

terrorism or people smuggling risk; or

(b) one or more breaches by the person of a condition of

registration; or

(c) such other matters (if any) as are specified in the AML/CTF

Rules under this paragraph.

(2) The cancellation of the registration of a person takes effect on the

day specified in the notice given to the person under subsection

75R(1).

(3) The AUSTRAC CEO may publish, in the manner specified in the

AML/CTF Rules, a list of the names of persons whose registration

has been cancelled and the date the cancellation takes effect.

75H Suspension of registration


suspension of registrations by the AUSTRAC CEO under this Part.

(2) The AML/CTF Rules may provide for matters including, but not

limited to, the following:

(a) the grounds for suspension of registration;

(b) the effect of suspension on registration;




Section 75J


(c) the period for which suspensions have effect;

(d) the effect of suspension of a registered remittance network

provider upon its registered remittance affiliates;

(e) making entries in and removing entries from the Remittance

Sector Register in relation to suspension;

(f) notices of suspension;

(g) review of decisions relating to suspension.

75J Renewal of registration


renewal of registrations by the AUSTRAC CEO under this Part.

(2) The AML/CTF Rules may provide for matters including, but not

limited to, the following:

(a) the making of applications for renewal;

(b) the period within which applications for renewal may be

made;

(c) the criteria for determining applications for renewal;

(d) entries in the Remittance Sector Register in relation to

renewal;

(e) the giving of notices relating to decisions on applications for

renewal;

(f) review of decisions relating to applications for renewal;

(g) the period for which renewed registrations have effect.

(3) In particular, the AML/CTF Rules may provide that:

(a) if the registration of a person would otherwise cease at the

end of the period of 3 years commencing on the day on

which the registration took effect; and

(b) before the end of that period, an application for renewal of

the registration was made to the AUSTRAC CEO within the

period, and in the manner provided for, in the AML/CTF

Rules;

the registration of the person continues in effect after the end of

that period in accordance with the Rules.




Section 75K


75K Removal of entries from the Remittance Sector Register

Removal on request

(1) A person who is one or more of the following:

(a) a registered remittance network provider;

(b) a registered independent remittance dealer;

(c) a registered remittance affiliate of a registered remittance

network provider;

may request the AUSTRAC CEO, in writing, to remove the entry

relating to one or more of the registrations of the person from the

Remittance Sector Register.

(2) If a person makes a request under subsection (1) in relation to one

or more registrations, the AUSTRAC CEO must remove from the

Remittance Sector Register the entry relating to each registration to

which the request relates.

Removal on cessation of registration—remittance network

providers

(3) If a person ceases to be a registered remittance network provider,

the AUSTRAC CEO must remove from the Remittance Sector

Register:

(a) the entry relating to the registered remittance network

provider; and

(b) each entry relating to a registered remittance affiliate of the


Removal on cessation of registration—independent remittance

dealers and affiliates

(4) If a person ceases to be a registered independent remittance dealer

or a registered remittance affiliate of a registered remittance

network provider, the AUSTRAC CEO must remove from the

Remittance Sector Register each entry relating to the independent

remittance dealer or the remittance affiliate, as the case requires.

Notice of removal—remittance network providers

(5) The AUSTRAC CEO must, as soon as reasonably practicable,

notify a remittance network provider, in writing, if:




Section 75L


(a) the AUSTRAC CEO removes from the Remittance Sector

Register an entry relating to a remittance affiliate of the

provider; and

(b) the removal of the affiliate was not because of the removal of

the provider as required by paragraph (3)(b).

Notice of removal—affiliates of remittance network providers

(6) The AUSTRAC CEO must, as soon as reasonably practicable,

notify each affiliate of a remittance network provider, in writing, if

the AUSTRAC CEO removes from the Remittance Sector Register

the entry relating to the provider.

75L AML/CTF Rules—general provision

If a provision of this Part provides for the AML/CTF Rules to

make provision in relation to a matter relating to the registration or

proposed registration of a person, the AML/CTF Rules may make

different provision in relation to a matter depending on whether the

registration or proposed registration of the person is as:




provider.

75M Registered persons to advise of material changes in

circumstance etc.

(1) A person who is registered under this Part as:




provider that applied for registration on its own behalf (see

paragraph 75B(1)(c));

must advise the AUSTRAC CEO of the following:

(d) any change in circumstances that could materially affect the

person’s registration;

(e) any matters specified in the AML/CTF Rules for the

purposes of this paragraph.




Section 75N


(2) A registered remittance affiliate of a registered remittance network

provider must advise the provider of the following:

(a) any change in circumstances that could materially affect the

person’s registration;

(b) any matters specified in the AML/CTF Rules for the

purposes of this paragraph;

unless the affiliate applied for registration on its own behalf (see

paragraph 75B(1)(c)).

(3) A registered remittance network provider must advise the

AUSTRAC CEO of any changes notified to it under subsection (2).

(4) A person who is required by this section to advise the AUSTRAC

CEO or a registered remittance network provider of a change in

circumstances or a matter must do so in accordance with the

approved form, and:

(a) in the case of a requirement under subsection (1) or (2)—

within 14 days of the change in circumstances or the matter

arising (however described); and

(b) in the case of a requirement under subsection (3)—within 7

days of the registered remittance network provider concerned

receiving the advice.

Civil penalty


75N AUSTRAC CEO may request further information

(1) The AUSTRAC CEO may, in writing, request further information

from any person for the purposes of making a decision under this

Part.

(2) The AUSTRAC CEO is not required to make a decision under this

Part until any information requested under subsection (1) in

relation to the decision has been provided.

75P Immunity from suit

An action, suit or proceeding (whether criminal or civil) does not

lie against:

(a) the Commonwealth; or




Section 75P


(b) the AUSTRAC CEO; or

(c) a member of the staff of AUSTRAC;

in relation to the publication of the Remittance Sector Register or a

list of a kind mentioned in subsection 75G(3).



Division 4 Notice and review of decisions

Section 75Q


Division 4—Notice and review of decisions

75Q Steps to be taken by AUSTRAC CEO before making certain

reviewable decisions

(1) Before making a reviewable decision in relation to a person, the

AUSTRAC CEO must give a written notice to the person

containing:

(a) the terms of the proposed decision; and

(b) if the proposed decision is to cancel a registration—the date

on which the cancellation is proposed to take effect; and

(c) the reasons for the proposed decision; and

(d) a statement that the person may, within 28 days of the giving

of the notice, make a submission under this section in

relation to the proposed decision.

(2) The AUSTRAC CEO is not required to give a notice under this

section if the AUSTRAC CEO is satisfied that it is inappropriate to

do so because of the urgency of the circumstances.

75R Internal review of reviewable decisions

Notice to be given

(1) The AUSTRAC CEO must, as soon as practicable after a

reviewable decision is made in relation to a person (other than an

AAT reviewable decision), give a written notice to the person

containing:

(a) the terms of the decision; and

(b) if the decision is to cancel the registration of a person—the

date on which the cancellation takes effect; and

(c) the reasons for the decision; and

(d) a statement setting out particulars of the person’s right to

have the decision reviewed under this section.

(2) Subsection (1) does not require the AUSTRAC CEO to give a

notice in relation to a decision that is taken to be made because of

the operation of subsection 75B(6) (which deals with deemed

refusal).



Notice and review of decisions Division 4

Section 75R


Applications for internal review

(3) A person to whom a reviewable decision referred to in

subsection (1) relates may apply to the AUSTRAC CEO for review

of the decision.

(4) An application for review must:


(b) contain the information required by the AML/CTF Rules;

and

(c) be made within 30 days after the day on which the decision

first came to the notice of the applicant, or within such period

(if any) as the AUSTRAC CEO, either before or after the end

of the 30 day period, allows.

Internal review of decision

(5) The AUSTRAC CEO must, on receiving an application under

subsection (3) for review of a reviewable decision, cause the

decision to be reviewed by a person to whom the AUSTRAC

CEO’s power under this section is delegated, being a person who:

(a) was not involved in making the decision; and

(b) occupies a position in AUSTRAC that is senior to that

occupied by any person involved in making the decision.

(6) A person who reviews a reviewable decision under this section

may:

(a) make a decision affirming, varying or revoking the

reviewable decision; and

(b) if the person revokes the decision—make such other decision

as the person thinks appropriate.

Failure to comply does not affect validity

(7) A failure to comply with the requirements of subsection (1) in

relation to a decision does not affect the validity of the decision.



Division 4 Notice and review of decisions

Section 75S


75S AAT review of decisions

Notice to be given

(1) The AUSTRAC CEO must, as soon as practicable after an AAT

reviewable decision is made in relation to a person, give a written

notice to the person containing:

(a) the terms of the AAT reviewable decision; and

(b) if the AAT reviewable decision is to cancel the registration of

a person—the date on which the cancellation takes effect;

and

(c) the reasons for the AAT reviewable decision; and

(d) a statement setting out particulars of the person’s right to

have the decision reviewed by the Administrative Appeals

Tribunal.

Note: An AAT reviewable decision is a reviewable decision made by the AUSTRAC CEO personally or made on review under subsection 75R(6).

Applications for review

(2) Applications may be made to the Administrative Appeals Tribunal

for review of an AAT reviewable decision by a person to whom the

AAT reviewable decision concerned relates.

Note: The Administrative Appeals Tribunal Act 1975 provides for the manner of applying for review, etc.

Failure to comply does not affect validity

(3) A failure to comply with the requirements of subsection (1) in

relation to an AAT reviewable decision does not affect the validity

of the decision.



Basis of registration Division 5

Section 75T


Division 5—Basis of registration

75T Basis of registration

Registration under this Part is on the basis that:

(a) the registration may cease as mentioned in section 75F; and

(b) the registration may be suspended as mentioned in

section 75H; and

(c) the registration may be made subject to conditions as

mentioned in section 75E; and

(d) the registration may cease, be suspended or be made subject

to conditions by or under later legislation; and

(e) no compensation is payable if the registration ceases, is

suspended or made subject to conditions as mentioned in any

of the above paragraphs.


Part 7 Anti-money laundering and counter-terrorism financing programs


Section 80


Part 7—Anti-money laundering and

counter-terrorism financing programs




• A reporting entity must have and comply with an anti-money

laundering and counter-terrorism financing program.

• An anti-money laundering and counter-terrorism financing

program is divided into Part A (general) and Part B (customer

identification).

• Part A of an anti-money laundering and counter-terrorism

financing program is designed to identify, mitigate and

manage the risk a reporting entity may reasonably face that

the provision by the reporting entity of designated services at

or through a permanent establishment of the entity in


or facilitate:

(a) money laundering; or

(b) financing of terrorism.

• Part B of an anti-money laundering and counter-terrorism

financing program sets out the applicable customer

identification procedures for customers of the reporting entity.


Anti-money laundering and counter-terrorism financing programs Part 7

Reporting entity’s obligations Division 2

Section 81


Division 2—Reporting entity’s obligations

81 Reporting entity must have an anti-money laundering and

counter-terrorism financing program

(1) A reporting entity must not commence to provide a designated

service to a customer if the reporting entity:

(a) has not adopted; and

(b) does not maintain;

an anti-money laundering and counter-terrorism financing program

that applies to the reporting entity.

Civil penalty


82 Compliance with Part A of an anti-money laundering and


Compliance with program

(1) If a reporting entity has adopted:

(a) a standard anti-money laundering and counter-terrorism

financing program; or

(b) a joint anti-money laundering and counter-terrorism

financing program;

that applies to the reporting entity, the reporting entity must

comply with:

(c) Part A of the program; or

(d) if the program has been varied on one or more occasions—

Part A of the program as varied.

Civil penalty




Division 2 Reporting entity’s obligations

Section 82


Exceptions

(3) Subsection (1) does not apply to a particular provision of Part A of

a standard anti-money laundering and counter-terrorism financing

program if the provision was not included in the program in order

to comply with the requirements specified in AML/CTF Rules

made for the purposes of paragraph 84(2)(c).

(4) Subsection (1) does not apply to a particular provision of Part A of

a joint anti-money laundering and counter-terrorism financing

program if the provision was not included in the program in order

to comply with the requirements specified in AML/CTF Rules

made for the purposes of paragraph 85(2)(c).

(5) A person who wishes to rely on subsection (3) or (4) bears an

evidential burden in relation to that matter.



Anti-money laundering and counter-terrorism financing programs Division 3

Section 83


Division 3—Anti-money laundering and counter-terrorism

financing programs

83 Anti-money laundering and counter-terrorism financing

programs

(1) An anti-money laundering and counter-terrorism financing

program is:

(a) a standard anti-money laundering and counter-terrorism

financing program (see section 84); or

(b) a joint anti-money laundering and counter-terrorism

financing program (see section 85); or

(c) a special anti-money laundering and counter-terrorism

financing program (see section 86).

(2) An anti-money laundering and counter-terrorism financing

program is not a legislative instrument.

84 Standard anti-money laundering and counter-terrorism

financing program

(1) A standard anti-money laundering and counter-terrorism

financing program is a written program that:

(a) applies to a particular reporting entity; and

(b) is divided into the following parts:

(i) Part A (general);

(ii) Part B (customer identification).

Note: A standard anti-money laundering and counter-terrorism financing program does not bind the reporting entity unless the reporting entity adopts the program (see section 82).

Part A (general)

(2) Part A of a standard anti-money laundering and counter-terrorism

financing program is a part:

(a) the primary purpose of which is to:

(i) identify; and

(ii) mitigate; and

(iii) manage;



Division 3 Anti-money laundering and counter-terrorism financing programs

Section 84






or facilitate:



(b) if the reporting entity provides designated services at or


a foreign country—another purpose of which is to ensure that

the reporting entity takes such action (if any) as is specified

in the AML/CTF Rules in relation to the provision by the

reporting entity of designated services at or through a

permanent establishment of the reporting entity in a foreign

country; and

(c) that complies with such requirements (if any) as are specified


Part B (customer identification)

(3) Part B of a standard anti-money laundering and counter-terrorism


(a) the sole or primary purpose of which is to set out the

applicable customer identification procedures for the

purposes of the application of this Act to customers of the

reporting entity; and

(b) that complies with such requirements (if any) as are specified


Reviews

(4) A requirement under paragraph (2)(c) may relate to reviews of a

standard anti-money laundering and counter-terrorism financing

program.

Holder of an Australian financial services licence

(5) A reporting entity is not entitled to adopt or maintain a standard

anti-money laundering and counter-terrorism financing program if

all of the designated services provided by the reporting entity are

covered by item 54 of table 1 in section 6.




Section 85



Registered remittance affiliates of a registered remittance network

provider

(5A) A reporting entity that is a registered remittance network provider

must make available a standard anti-money laundering and

counter-terrorism financing program to its registered remittance

affiliates for the purpose of adoption and maintenance under

section 81 by those affiliates. To avoid doubt, this subsection does

not prevent a remittance affiliate from adopting a program other

than one made available under this section.

Civil penalty

(5B) Subsection (5A) is a civil penalty provision.

Variation

(6) A standard anti-money laundering and counter-terrorism financing

program may be varied, so long as the varied program is a standard

anti-money laundering and counter-terrorism financing program.

Registered scheme—compliance plan

(7) If a reporting entity is the responsible entity of a registered scheme

(within the meaning of the Corporations Act 2001), the reporting

entity’s standard anti-money laundering and counter-terrorism

financing program may be set out in the same document as the

registered scheme’s compliance plan under that Act.

85 Joint anti-money laundering and counter-terrorism financing

program

(1) A joint anti-money laundering and counter-terrorism financing

program is a written program that:

(a) applies to each reporting entity that from time to time

belongs to a particular designated business group; and

(b) is divided into the following parts:

(i) Part A (general);

(ii) Part B (customer identification).




Section 85


Note: A joint anti-money laundering and counter-terrorism financing program does not bind any of those reporting entities unless the reporting entity adopts the program (see section 82).

Part A (general)

(2) Part A of a joint anti-money laundering and counter-terrorism


(a) the primary purpose of which is to:

(i) identify; and

(ii) mitigate; and

(iii) manage;

the risk each of those reporting entities may reasonably face

that the provision by the relevant reporting entity of

designated services at or through a permanent establishment

of the relevant reporting entity in Australia might (whether

inadvertently or otherwise) involve or facilitate:



(b) if any of those reporting entities provides designated services

at or through a permanent establishment of the relevant

reporting entity in a foreign country—another purpose of

which is to ensure that the relevant reporting entity takes

such action (if any) as is specified in the AML/CTF Rules in

relation to the provision by the relevant reporting entity of

designated services at or through a permanent establishment

of the relevant reporting entity in a foreign country; and



Part B (customer identification)

(3) Part B of a joint anti-money laundering and counter-terrorism


(a) the sole or primary purpose of which is to set out the


purposes of the application of this Act to customers of each

of those reporting entities; and

(b) that complies with such requirements (if any) as are specified





Section 86


Different reporting entities


program may make different provision with respect to different

reporting entities. This does not limit subsection 33(3A) of the Acts

Interpretation Act 1901.

Reviews

(5) A requirement under paragraph (2)(c) may relate to reviews of a

joint anti-money laundering and counter-terrorism financing

program.

Variation


program may be varied, so long as the varied program is a joint


86 Special anti-money laundering and counter-terrorism financing

program

(1) A special anti-money laundering and counter-terrorism

financing program is a written program:

(a) that applies to a particular reporting entity, where all of the

designated services provided by the reporting entity are

covered by item 54 of table 1 in section 6; and

(b) the sole or primary purpose of which is to set out the


purposes of the application of this Act to customers of the




Note 1: A special anti-money laundering and counter-terrorism financing program does not bind the reporting entity unless the reporting entity adopts the program (see section 82).

Note 2: Item 54 of table 1 in section 6 covers a holder of an Australian financial services licence who arranges for a person to receive a designated service.

(2) A reporting entity is not entitled to adopt or maintain a special

anti-money laundering and counter-terrorism financing program




Section 87


unless all of the designated services provided by the reporting

entity are covered by item 54 of table 1 in section 6.

Variation

(3) A special anti-money laundering and counter-terrorism financing

program may be varied, so long as the varied program is a special


87 Revocation of adoption of anti-money laundering and


If a reporting entity has adopted an anti-money laundering and

counter-terrorism financing program that applies to the reporting

entity, this Part does not prevent the reporting entity from:

(a) revoking that adoption; and

(b) adopting another anti-money laundering and

counter-terrorism financing program that applies to the

reporting entity.

88 Different applicable customer identification procedures

(1) Each of the following:

(a) Part B of a standard anti-money laundering and

counter-terrorism financing program;

(b) Part B of a joint anti-money laundering and counter-terrorism

financing program;

(c) a special anti-money laundering and counter-terrorism

financing program;

(d) AML/CTF Rules made for the purposes of paragraph

84(3)(b), 85(3)(b) or 86(1)(c);

may make different provision with respect to:

(e) different kinds of customers; or

(f) different kinds of designated services; or

(g) different circumstances.

(2) Subsection (1) does not limit subsection 33(3A) of the Acts

Interpretation Act 1901.

Note: The following are examples of different kinds of customers:

(a) individuals;




Section 89


(b) companies;

(c) trusts;

(d) partnerships.

89 Applicable customer identification procedures—agent of

customer

Standard anti-money laundering and counter-terrorism financing

program

(1) To avoid doubt, AML/CTF Rules made for the purposes of

paragraph 84(3)(b) may require that Part B of a standard


must provide that, if:

(a) a customer of the reporting entity deals with the reporting

entity in relation to the provision of a designated service

through an agent of the customer; and

(b) the customer does so in circumstances specified in the

AML/CTF Rules;

one or more elements of the applicable customer identification

procedure for the customer must involve the taking of steps

specified in the AML/CTF Rules in relation to the agent.

Joint anti-money laundering and counter-terrorism financing

program


paragraph 85(3)(b) may require that Part B of a joint anti-money

laundering and counter-terrorism financing program must provide

that, if:





AML/CTF Rules;







Section 90


Special anti-money laundering and counter-terrorism financing

program


paragraph 86(1)(c) may require that a special anti-money


that, if:





AML/CTF Rules;




90 Applicable customer identification procedures—customers other

than individuals


program


paragraph 84(3)(b) may require that Part B of a standard


must provide that, if a customer of the reporting entity is:

(a) a company; or

(b) a trust; or

(c) a partnership; or

(d) a corporation sole; or

(e) a body politic;



specified in the AML/CTF Rules in relation to a person who is:

(f) associated with the customer; and

(g) specified in the AML/CTF Rules.





Section 90



program


paragraph 85(3)(b) may require that Part B of a joint anti-money


that, if a customer of the reporting entity is:

(a) a company; or

(b) a trust; or



(e) a body politic;








program


paragraph 86(1)(c) may require that a special anti-money


that, if a customer of the reporting entity is:

(a) a company; or

(b) a trust; or



(e) a body politic;










Section 91


91 Applicable customer identification procedures—disclosure

certificates


program


paragraph 84(3)(b) may require that, if:

(a) a designated service is provided to a customer specified in

the AML/CTF Rules; or

(b) a designated service is provided to a customer in

circumstances specified in the AML/CTF Rules;

Part B of a standard anti-money laundering and counter-terrorism

financing program must provide that one or more elements of the

applicable customer identification procedure for the customer must

involve the reporting entity obtaining a certificate, to be known as

a disclosure certificate, from:

(c) the customer; or

(d) person who is:

(i) associated with the customer; and

(ii) specified in the AML/CTF Rules.



program


paragraph 85(3)(b) may require that, if:





Part B of a joint anti-money laundering and counter-terrorism

financing program must provide that one or more elements of the

applicable customer identification procedure for the customer must

involve the reporting entity obtaining a certificate, to be known as

a disclosure certificate, from:


(d) person who is:




Section 91






program


paragraph 86(1)(c) may require that, if:





a special anti-money laundering and counter-terrorism financing

program must provide that one or more elements of the applicable

customer identification procedure for the customer must involve

the reporting entity obtaining a certificate, to be known as a

disclosure certificate, from:


(d) person who is:






Division 4 Other provisions

Section 92


Division 4—Other provisions

92 Request to obtain information from a customer

Scope


(a) the reporting entity has adopted:

(i) a standard anti-money laundering and counter-terrorism

financing program; or

(ii) a joint anti-money laundering and counter-terrorism

financing program;

that applies to the reporting entity; and

(b) the reporting entity is providing, or has provided, a

designated service to a particular customer; and

(c) the reporting entity has reasonable grounds to believe that the

customer has information that is likely to assist the reporting

entity to comply with:

(i) Part A of the program; or


occasions—Part A of the program as varied.

Request to give information

(2) The reporting entity may, by written notice given to the customer,

request the customer to give the reporting entity, within the period

and in the manner specified in the notice, any such information.

(3) The notice must set out the effect of subsection (4).

Power to discontinue, restrict or limit provision of designated

services

(4) If the customer does not comply with the request, the reporting

entity may do any or all of following:

(a) refuse to continue to provide a designated service to the

customer;

(b) refuse to commence to provide a designated service to the

customer;



Other provisions Division 4

Section 93


(c) restrict or limit the provision of a designated service to the

customer;

until the customer provides the information covered by the request.

Protection from liability


lie against:

(a) the reporting entity; or

(b) an officer, employee or agent of the reporting entity acting in

the course of his or her office, employment or agency;


the reporting entity, officer, employee or agent in the exercise, or

purported exercise, of the power conferred by subsection (4).

93 Exemptions

(1) Paragraphs 84(2)(a) and (b) and 85(2)(a) and (b) do not apply to a

designated service that is of a kind specified in the AML/CTF

Rules.

(2) Paragraphs 84(2)(a) and (b) and 85(2)(a) and (b) do not apply to a

designated service that is provided in circumstances specified in

the AML/CTF Rules.


Part 8 Correspondent banking

Section 94


Part 8—Correspondent banking



• A financial institution must not enter into a correspondent

banking relationship with:

(a) a shell bank; or

(b) another financial institution that has a

correspondent banking relationship with a shell

bank.

• Before a financial institution enters into a correspondent

banking relationship with another financial institution, the

financial institution must carry out a due diligence assessment.

• If a financial institution has entered into a correspondent

banking relationship with another financial institution, the

financial institution must carry out regular due diligence

assessments.

95 Prohibition of entry into correspondent banking relationships

with shell banks etc.

(1) A financial institution must not enter into a correspondent banking

relationship with another person if the person does so reckless as to

whether:

(a) the other person is a shell bank; or

(b) the other person is a financial institution that has a

correspondent banking relationship with a shell bank.


Civil penalty



Correspondent banking Part 8

Section 96


96 Termination of correspondent banking relationship with shell

bank etc.

(1) If:

(a) a financial institution (the first financial institution) is in a

correspondent banking relationship with another person; and

(b) the first financial institution becomes aware that the other

person is a shell bank;

the first financial institution must, within:

(c) 20 business days after becoming aware as mentioned in

paragraph (b); or

(d) such longer period (if any) as the AUSTRAC CEO allows;

terminate the correspondent banking relationship.


(2) If:

(a) a financial institution (the first financial institution) is in a

correspondent banking relationship with another financial

institution; and

(b) the first financial institution becomes aware that the other

financial institution has a correspondent banking relationship

with a shell bank;


(c) 20 business days after becoming aware as mentioned in

paragraph (b); or


either:

(e) terminate the correspondent banking relationship mentioned

in paragraph (a); or

(f) request the other financial institution to terminate the

correspondent banking relationship mentioned in

paragraph (b).


(3) If:

(a) a financial institution (the first financial institution) makes a

request under paragraph (2)(f) of another financial institution;

and



Section 97


(b) at the end of the period of 20 business days after the request

was made, the other financial institution has not complied

with the request;


(c) 20 business days after the end of the period mentioned in

paragraph (b); or


terminate its correspondent banking relationship with the other

financial institution.


Civil penalty


97 Due diligence assessments before entering into correspondent

banking relationships etc.

Preliminary risk assessment

(1) Before a financial institution (the first financial institution) enters

into a correspondent banking relationship with another financial

institution, the first financial institution must carry out an

assessment of the risk the first financial institution may reasonably

face that the correspondent banking relationship might (whether




Due diligence assessment

(2) Before a financial institution (the first financial institution) enters


institution, the first financial institution must:

(a) carry out an assessment of such matters as are specified in

the AML/CTF Rules; and

(b) prepare a written record of the assessment as soon as

practicable after the completion of the assessment;

if carrying out the assessment is warranted by the risk identified in

the assessment carried out by the first financial institution under

subsection (1).



Section 98



Civil penalty


98 Regular due diligence assessments of correspondent banking

relationships etc.

Preliminary risk assessment

(1) If a financial institution (the first financial institution) has,

whether before or after the commencement of this section, entered


institution, the first financial institution must carry out regular

assessments of the risk the first financial institution may

reasonably face that the correspondent banking relationship might

(whether inadvertently or otherwise) involve or facilitate:



Due diligence assessment

(2) If a financial institution (the first financial institution) has,

whether before or after the commencement of this section, entered


institution, the first financial institution must:

(a) carry out regular assessments of such matters as are specified

in the AML/CTF Rules; and

(b) prepare a written record of each assessment as soon as

practicable after the completion of the assessment;

if carrying out those assessments are warranted by the risk

identified in an assessment carried out by the first financial

institution under subsection (1).




Section 99


Frequency of assessments

(3) The first assessment under subsection (1) must be carried out

within:

(a) if the first financial institution enters into the correspondent

banking relationship after the commencement of this

section—the period:

(i) beginning at the time when the first financial institution

enters into the correspondent banking relationship; and

(ii) ending at the end of the period ascertained in

accordance with the AML/CTF Rules; or

(b) otherwise—the period:

(i) beginning at the commencement of this section; and

(ii) ending at the end of the period ascertained in

accordance with the AML/CTF Rules.

(4) The intervals between subsequent assessments must not be longer

than the period ascertained in accordance with the AML/CTF

Rules.

(5) AML/CTF Rules made for the purposes of subparagraph (3)(a)(ii)

or (b)(ii) or subsection (4) may provide that, for the purposes of the

application of this Act to the first financial institution, the first

financial institution is required or permitted to determine the period

concerned, so long as the first financial institution has regard to

such matters as are specified in the AML/CTF Rules.

(6) Subsection (5) does not limit subparagraph (3)(a)(ii) or (b)(ii) or

subsection (4).

Civil penalty


99 Other rules about correspondent banking relationships

(1) A financial institution must not enter into a correspondent banking

relationship with another person if a senior officer of the financial

institution has not approved the entering into of that relationship,

having regard to such matters (if any) as are specified in the

AML/CTF Rules.



Section 100


(2) If a financial institution has a correspondent banking relationship

with another person, the financial institution must document:

(a) its responsibilities under that relationship; and

(b) the responsibilities of the other person under that

relationship.

Civil penalty


100 Geographical links

A financial institution is not subject to a requirement under this

Part in connection with a correspondent banking relationship the

financial institution has, or proposes to have, with another person

unless:

(a) the financial institution carries on an activity or business at or

through a permanent establishment of the financial institution

in Australia; or

(b) both:

(i) the financial institution is a resident of Australia; and

(ii) the financial institution carries on an activity or business


institution in a foreign country; or

(c) both:

(i) the financial institution is a subsidiary of a company

that is a resident of Australia; and

(ii) the financial institution carries on an activity or business


institution in a foreign country.



Part 9 Countermeasures

Section 101


Part 9—Countermeasures



• The regulations may prohibit or regulate the entering into of

transactions with residents of prescribed foreign countries.

102 Countermeasures

(1) The regulations may make provision for or in relation to

prohibiting or regulating the entering into of transactions, where:

(a) both:

(i) one of the parties to the transaction is a resident of

Australia; and

(ii) the other party, or any of the other parties, is a resident

of a prescribed foreign country; or

(b) both:

(i) one of the parties to the transaction enters into the

transaction in the course of carrying on an activity or

business at or through a permanent establishment of the

party in Australia; and

(ii) the other party, or any of the other parties, is a resident

of a prescribed foreign country; or

(c) both:


Australia; and

(ii) the other party, or any of the other parties, is a

corporation incorporated in a prescribed foreign

country; or

(d) both:






Countermeasures Part 9

Section 103


(ii) the other party, or any of the other parties, is a

corporation incorporated in a prescribed foreign

country; or

(e) both:


Australia; and

(ii) the other party, or any of the other parties, is an

individual who is physically present in a prescribed

foreign country; or

(f) both:





(ii) the other party, or any of the other parties, is an

individual who is physically present in a prescribed

foreign country.


(2) Regulations made for the purposes of subsection (1):

(a) may be of general application; or

(b) may be limited by reference to any or all of the following:

(i) a specified transaction;

(ii) a specified party;

(iii) a specified prescribed foreign country.

Note 1: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

Note 2: For consultation requirements, see section 17 of the Legislative Instruments Act 2003.

103 Sunsetting of regulations after 2 years

Section 50 of the Legislative Instruments Act 2003 has effect, in

relation to regulations made for the purposes of subsection 102(1),

as if each reference in that section to tenth anniversary were read as

a reference to second anniversary.


Part 10 Record-keeping requirements


Section 104


Part 10—Record-keeping requirements




• The AML/CTF Rules may provide that a reporting entity must

make a record of a designated service. The reporting entity

must retain the record for 7 years.

• If a customer of a reporting entity gives the reporting entity a

document relating to the provision of a designated service, the

reporting entity must retain the document for 7 years.

• A reporting entity must retain a record of an applicable

customer identification procedure for 7 years after the end of

the reporting entity’s relationship with the relevant customer.

• A reporting entity must retain a copy of its anti-money

laundering and counter-terrorism financing program.

105 Privacy Act not overridden by this Part

This Part does not override Part IIIA of the Privacy Act 1988.


Record-keeping requirements Part 10

Records of transactions etc. Division 2

Section 106


Division 2—Records of transactions etc.

106 Records of designated services

(1) The AML/CTF Rules may provide that, if a reporting entity

commences to provide, or provides, a specified kind of designated

service to a customer, the reporting entity must make a record of

information relating to the provision of the service.

(2) The AML/CTF Rules may provide that, if a reporting entity

commences to provide, or provides, a designated service to a

customer in circumstances specified in the AML/CTF Rules, the

reporting entity must make a record of information relating to the

provision of the service.

(3) A record under subsection (1) or (2) must comply with such

requirements (if any) as are specified in the AML/CTF Rules.

(4) A reporting entity must comply with AML/CTF Rules made for the

purposes of this section.

Civil penalty



(6) If:

(a) a reporting entity is a member of a designated business

group; and

(b) such other conditions (if any) as are specified in the






Division 2 Records of transactions etc.

Section 107


107 Transaction records to be retained

Scope


(a) a reporting entity makes a record of information relating to

the provision of a designated service to a customer; and

(b) the record is not declared by the AML/CTF Rules to be

exempt from this section.

Retention

(2) The reporting entity must retain:

(a) the record; or

(b) a copy of the record; or

(c) an extract from the record showing the prescribed

information;

for 7 years after the making of the record.

Civil penalty



(4) If:


group; and





108 Customer-provided transaction documents to be retained

Scope


(a) a document relating to the provision, or prospective

provision, of a designated service by a reporting entity is

given to the reporting entity by or on behalf of the customer

concerned; and




Section 109


(b) the reporting entity commences, or has commenced, to

provide the service to the customer.

(2) The reporting entity must retain:

(a) the document; or

(b) a copy of the document;

for 7 years after the giving of the document.

Civil penalty



(4) If:


group; and





109 Records relating to transferred ADI accounts

Scope


(a) a document is in the possession of an ADI (the transferor

ADI) in fulfilment of an obligation imposed on it by

section 107 or 108; and

(b) the document relates to an active account that has been, or is

proposed to be, transferred to another ADI (the transferee

ADI) under:

(i) a law of the Commonwealth or of a State or Territory;

or

(ii) an arrangement between the transferor ADI and the

transferee ADI.



Division 2 Records of transactions etc.

Section 110


Transferor ADI must give document to the transferee ADI

(2) The transferor ADI must give the document to the transferee ADI

within the 120-day period beginning 30 days before the transfer of

the account.

Transferor ADI released from retention obligations

(3) Sections 107 and 108 do not apply to the transferor ADI, in

relation to the document, if the transferor ADI gave the original or

a copy of the document to the transferee ADI within the 120-day

period beginning 30 days before the transfer of the account.


Retention obligations of transferee ADI

(4) If the transferee ADI is given the document within the 120-day

period beginning 30 days before the transfer of the account, the

transferee ADI must retain:

(a) the document; or

(b) a copy of the document;

for 7 years after the giving of the document.

Civil penalty


110 Retention of records relating to closed ADI accounts

Transferor ADI may give documents to transferee ADI

(1) An ADI (the transferor ADI) may give the original and copies of a

document (the second document) relating to an account to another

ADI (the transferee ADI) if:

(a) the transferor ADI has given another document (the first

document) relating to the same account to the transferee ADI

in accordance with section 109; and

(b) the second document is in the transferor ADI’s possession in

fulfilment of an obligation imposed on it by section 107 or

108; and

(c) the second document relates to a closed account; and




Section 110


(d) the transferor ADI and the transferee ADI agree in writing

that the second document should be given by the transferor

ADI to the transferee ADI within the 120-day period allowed

by section 109 for the giving of the first document.

Transferor ADI released from retention obligations

(2) Sections 107 and 108 do not apply to the transferor ADI, in

relation to the second document, if the transferor ADI gave the

original or a copy of the second document to the transferee ADI

within the 120-day period allowed by section 109 for the giving of

the first document.


Retention obligations of transferee ADI

(3) If the transferee ADI is given the original or a copy of the second

document within the 120-day period allowed by section 109 for the

giving of the first document, the transferee ADI must retain:

(a) the second document; or

(b) a copy of the second document;

for 7 years after the giving of the second document.

Civil penalty




Division 3 Records of identification procedures

Section 111


Division 3—Records of identification procedures

111 Copying documents obtained in the course of carrying out an

applicable custom identification procedure

For the purposes of this Act, if:

(a) a document is produced to a reporting entity in the course of

an applicable customer identification procedure carried out

under this Act; and

(b) the reporting entity makes a copy of the document;

the reporting entity is taken to have made a record of the

information contained in the document.

112 Making of records of identification procedures

Scope

(1) This section applies to a reporting entity if the reporting entity

carries out an applicable customer identification procedure in

respect of a particular customer to whom the reporting entity

provided, or proposed to provide, a designated service.

Records

(2) The reporting entity must make a record of:

(a) the procedure; and

(b) information obtained in the course of carrying out the

procedure; and

(c) such other information (if any) about the procedure as is


(3) A record under subsection (2) must comply with such requirements

(if any) as are specified in the AML/CTF Rules.

Civil penalty




Records of identification procedures Division 3

Section 113



(5) If:


group; and





113 Retention of records of identification procedures

Scope


(a) the reporting entity carried out an applicable customer

identification procedure in respect of a particular customer to

whom the reporting entity provided, or proposed to provide,

a designated service; and

(b) the reporting entity made a record of:

(i) the procedure; or

(ii) information obtained in the course of carrying out the

procedure; or

(iii) such other information (if any) about the procedure as is


Retention

(2) The reporting entity must retain the record, or a copy of the record,

until the end of the first 7-year period:

(a) that began at a time after the procedure was carried out; and

(b) throughout the whole of which the reporting entity did not

provide any designated services to the customer.

Civil penalty





Section 114



(4) If:


group; and





114 Records of identification procedures deemed to have been

carried out by a reporting entity

Scope


(a) on a particular day (the customer identification day), a

reporting entity (the first reporting entity) carried out the

applicable customer identification procedure in respect of a

particular customer to whom the reporting entity provided, or

proposed to provide, a designated service; and

(b) under section 38, Part 2 has effect as if the applicable

customer identification procedure had also been carried out

in respect of the customer by another reporting entity (the

second reporting entity); and

(c) the first reporting entity made a record of:

(i) the procedure; or

(ii) information obtained in the course of carrying out the

procedure; or

(iii) such other information (if any) about the procedure as is

specified in the AML/CTF Rules; and

(d) the record is not declared by the AML/CTF Rules to be

exempt from this section.

Copy of record to be given to second reporting entity

(2) If:

(a) on the customer identification day, the customer is a

customer to whom the second reporting entity provides, or

proposes to provide, a designated service; and



Records of identification procedures Division 3

Section 114


(b) the second reporting entity does not already have a copy of

the record;

the second reporting entity must, by written notice given to the first

reporting entity within 5 business days after that day, request the

first reporting entity to give the second reporting entity a copy of

the record within 5 business days after the request is given.

(3) If:

(a) on a day later than the customer identification day, the

customer becomes a customer to whom the second reporting

entity provides, or proposes to provide, a designated service;

and

(b) the second reporting entity does not already have a copy of

the record;

the second reporting entity must, by written notice given to the first

reporting entity within 5 business days after that later day, request

the first reporting entity to give the second reporting entity a copy

of the of the record within 5 business days after the request is

given.

(4) The first reporting entity must comply with a request under

whichever of subsections (2) and (3) is applicable.

Retention of copy by second reporting entity

(5) If the first reporting entity gives a copy of the record to the second

reporting entity, the second reporting entity must retain the copy

until the end of the first 7-year period:

(a) that began at a time after the applicable customer

identification procedure was carried out; and

(b) throughout the whole of which the second reporting entity

did not provide any designated services to the customer.

Civil penalty

(6) Subsections (2), (3), (4) and (5) are civil penalty provisions.


(7) If:


group; and




Section 114




an obligation imposed on the reporting entity by subsection (2),

(3), (4) or (5) may be discharged by any other member of the

group.



Records about electronic funds transfer instructions Division 4

Section 115


Division 4—Records about electronic funds transfer

instructions

115 Retention of records about electronic funds transfer instructions

Scope


(a) section 64 applies to:

(i) a multiple-institution person-to-person electronic funds


(ii) a multiple-institution same-person electronic funds


(b) a person is in the funds transfer chain; and

(c) the person is an interposed person and the transfer instruction

is to be passed on by the person at or through a permanent

establishment of the person in Australia; and

(d) the making available by the beneficiary institution of the



Australia; and

(e) some or all of the required transfer information was passed

on to the person by another person in the funds transfer

chain; and

(f) the transfer instruction was accepted by the ordering

institution at or through a permanent establishment of the

ordering institution in a foreign country; and

(g) the transfer instruction was passed on to the person by a

permanent establishment of the ordering institution, or of

another person, in a foreign country.

Keeping and retention of records

(2) The person must:

(a) make a record of so much of the required transfer

information as was passed on to the person as mentioned in

paragraph (1)(e); and

(b) retain that record, or a copy of the record, for 7 years after the

transfer instruction was passed on to the person.



Division 4 Records about electronic funds transfer instructions

Section 115


Civil penalty




Records about anti-money laundering and counter-terrorism financing programs

Division 5

Section 116


Division 5—Records about anti-money laundering and

counter-terrorism financing programs

116 Records about anti-money laundering and counter-terrorism

financing programs

Scope

(1) This section applies to a reporting entity if the reporting entity

adopts an anti-money laundering and counter-terrorism financing

program that applies to the reporting entity.

Record of adoption


(a) make a record of the adoption; and

(b) retain the record, or a copy of the record, throughout the

period:

(i) beginning at the completion of the preparation of the

record; and

(ii) ending 7 years after the day on which the adoption

ceases to be in force.

Retention of program etc.

(3) The reporting entity must retain the program, or a copy of the

program, throughout the period:

(a) beginning at the time of the adoption; and

(b) ending 7 years after the day on which the adoption ceases to

be in force.

(4) If the program is varied while the adoption is in force, the reporting

entity must retain the variation, or a copy of the variation,

throughout the period:

(a) beginning at the time of the variation; and

(b) ending 7 years after the day on which the adoption ceases to

be in force.



Division 5 Records about anti-money laundering and counter-terrorism financing

programs

Section 116


Civil penalty



(6) If:


group; and



the obligation imposed on the reporting entity by subsection (2),

(3) or (4) may be discharged by any other member of the group.



Records about due diligence assessments of correspondent banking relationships

Division 6

Section 117


Division 6—Records about due diligence assessments of

correspondent banking relationships

117 Retention of records of due diligence assessments of

correspondent banking relationships

Scope

(1) This section applies to a financial institution if the financial

institution prepared a record under subsection 97(2) or 98(2).

Retention

(2) The financial institution must retain the record, or a copy of the

record, for 7 years after the completion of the preparation of the

record.

Civil penalty





Section 118



118 Exemptions

(1) This Part (other than sections 109, 110, 115, 116 and 117) does not

apply to a designated service that is of a kind specified in the

AML/CTF Rules.


Part (other than sections 109, 110, 115, 116 and 117) does not

apply to a designated service that is of a kind specified in the

AML/CTF Rules.


apply to a designated service that is provided in circumstances



Part (other than sections 109, 110, 115, 116 and 117) does not

apply to a designated service that is provided in circumstances



apply to a designated service that is provided by a reporting entity

at or through a permanent establishment of the reporting entity in a

foreign country.

119 This Part does not limit any other obligations

This Part does not limit any other obligation of a person to make

records or retain documents.


Secrecy and access Part 11


Section 120


Part 11—Secrecy and access




• Except as permitted by this Act, an AUSTRAC official must

not disclose information or documents obtained under this

Act.

• A reporting entity must not disclose that it has:

(a) reported, or is required to report, information to the

AUSTRAC CEO under section 41; or

(b) formed a suspicion, under section 41, about a

transaction or matter.

• The Australian Taxation Office and certain other Australian

government bodies may access AUSTRAC information.


Part 11 Secrecy and access

Division 2 Secrecy

Section 121


Division 2—Secrecy

121 Secrecy—AUSTRAC information and AUSTRAC documents

(1) This section restricts what a person (the entrusted public official)

who is or was:


(b) a member of the staff of AUSTRAC; or

(c) a person engaged as a consultant under subsection 225(1); or

(d) a person whose services are made available to the

AUSTRAC CEO under subsection 225(3); or

(e) the Director of AUSTRAC; or

(f) a person engaged as a consultant under repealed section 40A

of the Financial Transaction Reports Act 1988;

may do with AUSTRAC information or documents containing

AUSTRAC information.

(2) The entrusted public official commits an offence if:

(a) the official has obtained AUSTRAC information (otherwise

than under section 49 or Division 4); and

(b) the official discloses the information to another person.


(3) Each of the following is an exception to the prohibition in

subsection (2):

(a) the disclosure is for the purposes of this Act or the Financial

Transaction Reports Act 1988;

(b) the disclosure is for the purposes of the performance of the

functions of the AUSTRAC CEO;

(c) the disclosure is otherwise in connection with the

performance of the entrusted public official’s duties under

this Act or the Financial Transaction Reports Act 1988;

(d) the disclosure is in connection with giving another person

covered by paragraph (1)(a), (b), (c) or (d) access to

information for the purposes of, or in connection with:

(i) the performance of the functions of the AUSTRAC

CEO; or



Secrecy Division 2

Section 122


(ii) the performance of the other person’s duties under this

Act or the Financial Transaction Reports Act 1988;

(e) the disclosure is in connection with giving access to

AUSTRAC information in accordance with Division 4.

Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) Except where it is necessary to do so for the purposes of giving

effect to this Act or the Financial Transaction Reports Act 1988,

the entrusted public official is not to be required:

(a) to produce to a court or tribunal a document containing

AUSTRAC information; or

(b) to disclose AUSTRAC information to a court or tribunal.

(5) To avoid doubt, paragraph (2)(a) applies to AUSTRAC

information obtained under subsection (3).

122 Secrecy—information obtained under section 49

(1) This section restricts what a person (the entrusted investigating

official) who is or was:


(b) a member of the staff of AUSTRAC; or

(c) a person engaged as a consultant under subsection 225(1); or

(d) a person whose services are made available to the

AUSTRAC CEO under subsection 225(3); or

(e) the Commissioner of the Australian Federal Police; or

(f) the Chief Executive Officer of the Australian Crime

Commission; or

(g) the Commissioner of Taxation; or

(h) the Chief Executive Officer of Customs; or

(i) the Integrity Commissioner; or

(j) an investigating officer;

may do with section 49 information.

(2) The entrusted investigating official commits an offence if:

(a) the official has obtained section 49 information; and





Division 2 Secrecy

Section 122



subsection (2):

(a) the disclosure is for the purposes of this Act or the Financial

Transaction Reports Act 1988;

(b) the disclosure is for the purposes of the performance of the

functions of the AUSTRAC CEO;

(c) the disclosure is otherwise in connection with the

performance of the entrusted investigating official’s duties

under this Act or the Financial Transaction Reports Act

1988;

(d) if the entrusted investigating official is covered by

paragraph (1)(a), (b), (c) or (d)—the disclosure is in

connection with giving another person covered by

paragraph (1)(a), (b), (c) or (d) access to information for the

purposes of, or in connection with:

(i) the performance of the functions of the AUSTRAC

CEO; or

(ii) the performance of the other person’s duties under this

Act or the Financial Transaction Reports Act 1988;

(e) if the entrusted investigating official is the Commissioner of

the Australian Federal Police—the disclosure is in

connection with giving an AFP member access to

information for the purposes of, or in connection with, the

performance of the AFP member’s duties;

(f) if the entrusted investigating official is the Chief Executive

Officer of the Australian Crime Commission—the disclosure

is in connection with giving:

(i) an examiner of the Australian Crime Commission; or

(ii) a member of the staff of the Australian Crime

Commission;

access to information for the purposes of, or in connection

with, the performance of the examiner’s duties or the

member’s duties, as the case may be;

(g) if the entrusted investigating official is the Commissioner of

Taxation—the disclosure is in connection with giving a

taxation officer access to information for the purposes of, or

in connection with, the performance of the taxation officer’s

duties;

(h) if the entrusted investigating official is the Chief Executive

Officer of Customs—the disclosure is in connection with



Secrecy Division 2

Section 122


giving a customs officer access to information for the

purposes of, or in connection with, the performance of the

customs officer’s duties;

(i) if the entrusted investigating official is the Integrity

Commissioner—the disclosure is in connection with giving

an Australian Commission for Law Enforcement Integrity

officer access to information for the purposes of, or in

connection with, the performance of the Australian

Commission for Law Enforcement Integrity officer’s duties;

(j) the disclosure is in connection with giving another entrusted

investigating official access to information for the purposes

of, or in connection with, the performance of the other

official’s duties.



effect to this Act or the Financial Transaction Reports Act 1988,

the entrusted investigating official is not to be required:

(a) to produce to a court or tribunal a document containing

section 49 information; or

(b) to disclose section 49 information to a court or tribunal.

(5) Section 49 information is information obtained by the entrusted

investigating official:

(a) under section 49; or

(b) under subsection (3).



Division 3 Disclosure of information

Section 123


Division 3—Disclosure of information

123 Offence of tipping off

Prohibitions

(1) If:

(a) a suspicious matter reporting obligation arises or has arisen

for a reporting entity in relation to a person; and

(b) the reporting entity has communicated information to the

AUSTRAC CEO under subsection 41(2);

the reporting entity must not disclose to someone other than the

AUSTRAC CEO or a member of the staff of AUSTRAC that the

information has been communicated to the AUSTRAC CEO.


Note 2: This subsection deals with the disclosure of information. It does not deal with the carrying out of applicable customer identification procedures.

(2) If:

(a) a suspicious matter reporting obligation arises or has arisen

for a reporting entity in relation to a person; and

(b) either:

(i) the reporting entity has formed the applicable suspicion

mentioned in subsection 41(1); or

(ii) the reporting entity has communicated information to

the AUSTRAC CEO under subsection 41(2);

then:

(c) if subparagraph (b)(i) applies—the reporting entity must not

disclose to someone other than the AUSTRAC CEO or a

member of the staff of AUSTRAC:

(i) that the reporting entity has formed the applicable

suspicion mentioned in subsection 41(1); or

(ii) any other information from which the person to whom

the information is disclosed could reasonably be

expected to infer that the suspicion had been formed;

and

(d) if subparagraph (b)(ii) applies—the reporting entity must not

disclose to a person other than the AUSTRAC CEO or a



Disclosure of information Division 3

Section 123


member of the staff of AUSTRAC any other information

from which the person to whom the information is disclosed

could reasonably be expected to infer that information had

been communicated to the AUSTRAC CEO under subsection

41(2).


Note 2: This subsection deals with the disclosure of information. It does not deal with the carrying out of applicable customer identification procedures.

(3) If a reporting entity is required under subsection 49(1) to give

information, or produce a document, to a person, the reporting

entity must not disclose to anyone else:

(a) that the reporting entity is or has been required to do so; or

(b) that the information has been given or the document has been

produced; or

(c) any other information from which the person to whom the

information is disclosed could reasonably be expected to

infer that:

(i) the reporting entity had been required to give the

first-mentioned information or produce the document;

or

(ii) the first-mentioned information had been given; or

(iii) the document had been produced.

Exceptions

(4) Subsection (2) does not apply to the disclosure of information by a

reporting entity if:

(a) the reporting entity is:

(i) a legal practitioner (however described); or

(ii) a partnership or company that carries on a business of

using legal practitioners (however described) to supply

professional legal services; or

(iii) a qualified accountant; or

(iv) a partnership or company that carries on a business of

using qualified accountants to supply professional

accountancy services; or





Section 123


(b) the information relates to the affairs of a customer of the


(c) the disclosure is made for the purposes of dissuading the

customer from engaging in conduct that constitutes, or could

constitute:

(i) evasion of a taxation law; or

(ii) evasion of a law of a State or Territory that deals with

taxation; or

(iii) an offence against a law of the Commonwealth or of a

State or Territory.



reporting entity if the disclosure is to a legal practitioner (however

described) for the purpose of obtaining legal advice.


(5A) A person to whom information has been disclosed under

subsection (5) must not disclose the information to another person.

(6) Subsection (2) does not apply to the disclosure of information

about the operation of Part 4 of the Charter of the United Nations

Act 1945.




(a) the reporting entity belongs to a designated business group;

and

(b) the reporting entity has adopted a joint anti-money

laundering and counter-terrorism financing program that:

(i) applies to the reporting entity; and

(ii) relates to the designated business group; and

(c) the information relates to the affairs of a customer of the


(d) the disclosure is made to another reporting entity that belongs

to the designated business group; and




Section 123


(e) the disclosure is made for the purpose of informing the other

reporting entity about the risks involved in dealing with the

customer.


(7A) Subsection (2) does not apply to the disclosure of information by a


(a) the reporting entity is a registered remittance affiliate of a

registered remittance network provider and the disclosure is

made to the registered remittance network provider; or

(b) the reporting entity is a registered remittance network

provider and the disclosure is made to a registered remittance

affiliate of the registered remittance network provider.



(a) the reporting entity is an ADI; and

(b) the disclosure is to an owner-managed branch of the ADI.

(8A) A person to whom information has been disclosed under

subsection (8) must not disclose the information to another person.



(a) the disclosure is in compliance with a requirement under a

law of the Commonwealth, a State or a Territory; or

(b) the disclosure is to an Australian government body that has

responsibility for law enforcement.



effect to this Act or the Financial Transaction Reports Act 1988, a

reporting entity is not to be required to disclose to a court or

tribunal information mentioned in subsection (1), (2) or (3).

Offence



(2), (3), (5A) or (8A); and




Section 124




Penalty for contravention of this subsection: Imprisonment for 2

years or 120 penalty units, or both.

124 Report and information not admissible

(1) In any court or tribunal proceedings:

(a) none of the following is admissible in evidence:

(i) a report given under, or prepared for the purposes of,

subsection 41(2);

(ii) a copy of such a report;

(iii) a document purporting to set out information (including

the formation or existence of a suspicion) contained in

such a report;

(iv) a document given or produced under subsection 49(1),

in so far as that subsection relates to a communication

under section 41; and

(b) evidence is not admissible as to:

(i) whether or not a report was prepared for the purposes of

subsection 41(2); or

(ii) whether or not a report prepared for the purposes of

subsection 41(2), or a document purporting to set out

information (including the formation or existence of a

suspicion) contained in such a report, was given to, or

received by, the AUSTRAC CEO; or

(iii) whether or not particular information (including the

formation or existence of a suspicion) was contained in

a report prepared for the purposes of subsection 41(2);

or

(iv) whether or not particular information (including the

formation or existence of a suspicion) was given under

subsection 49(1), in so far as that subsection relates to a

communication under section 41; or

(v) whether or not a particular document was produced

under subsection 49(1), in so far as that subsection

relates to a communication under section 41.

(2) Subsection (1) does not apply to the following proceedings:




Section 124


(a) criminal proceedings for an offence against section 123, 136

or 137;

(b) section 175 proceedings for a contravention of subsection

41(2) or 49(2).



Division 4 Access to AUSTRAC information by agencies

Section 125


Division 4—Access to AUSTRAC information by agencies

Subdivision A—Access by the ATO to AUSTRAC information

125 Access by the ATO to AUSTRAC information

(1) The Commissioner of Taxation and any taxation officer is entitled

to access to AUSTRAC information for any purpose relating to the

facilitation of the administration or enforcement of a taxation law.

(2) An official of a designated agency may disclose AUSTRAC

information to:

(a) the Commissioner of Taxation; or

(b) a taxation officer.

Application of Division 355 in Schedule 1 to the Taxation

Administration Act 1953

(3) Division 355 in Schedule 1 to the Taxation Administration Act

1953 applies in relation to AUSTRAC information obtained by the

Commissioner of Taxation or a taxation officer under

subsection (1) or (2) of this section as if a reference in that

Division to a taxation law included a reference to this Act or the

Financial Transaction Reports Act 1988.

Note: Division 355 in Schedule 1 to the Taxation Administration Act 1953 deals with confidentiality of taxation information.

(4) Division 355 in Schedule 1 to the Taxation Administration Act

1953 does not apply to the disclosure by the Commissioner of

Taxation or a taxation officer of AUSTRAC information to an

official of a designated agency for the purposes of, or in connection

with, the performance of the official’s duties in relation to the

designated agency, so long as the official holds an appropriate

authorisation under subsection 126(1).



Access to AUSTRAC information by agencies Division 4

Section 126


Subdivision B—Access by designated agencies to AUSTRAC

information

126 Access by designated agencies to AUSTRAC information

(1) The AUSTRAC CEO may, in writing, authorise specified officials,

or a specified class of officials, of a specified designated agency to

have access to AUSTRAC information for the purposes of

performing the agency’s functions and exercising the agency’s

powers.


(2) An authorisation under subsection (1) is not a legislative

instrument.

Limitations on AUSTRAC’s power to authorise access by State or

Territory agencies

(3) Despite subsection (1), the AUSTRAC CEO may specify a

designated agency mentioned in any of paragraphs (p) to (x) of the

definition of designated agency in section 5 only if the designated

agency undertakes that it and its officials will comply with the

Information Privacy Principles set out in section 14 of the Privacy

Act 1988 in respect of AUSTRAC information obtained under:

(a) the authorisation; or

(b) subsection 128(2).

AUSTRAC information, or class of AUSTRAC information, to

which access is authorised

(4) An authorisation under subsection (1) must state the AUSTRAC

information, or the class of AUSTRAC information, to which the

officials of the designated agency are to have access.

Treasury Department

(5) This Subdivision does not apply to a function or power of the

Treasury Department unless the function or power relates to the

Foreign Acquisitions and Takeovers Act 1975 or regulations under

that Act.




Section 127


(6) This Subdivision does not apply in relation to the duties of an

official of the Treasury Department unless those duties relate to the

Foreign Acquisitions and Takeovers Act 1975 or regulations under

that Act.

127 Dealings with AUSTRAC information once accessed

(1) This section restricts what a person (the entrusted agency official)

who is or was an official of a designated agency may do with

accessed information.

(2) The entrusted agency official commits an offence if:

(a) the official has obtained accessed information; and




subsection (2):

(a) the disclosure is for the purposes of, or in connection with,

the performance of the official’s duties;

(b) the disclosure is authorised by, or is in connection with

communicating AUSTRAC information under, subsection

125(2) or section 128, 132, 133, 133A, 133B or 133C.


(4) Accessed information is AUSTRAC information obtained by the

entrusted agency official under any of the following provisions:

(a) subsection 125(4);

(b) section 126;

(c) subsection 128(1) or (2);

(d) subsection 132(2), (4), (5) or (7);

(e) subsection 133(2) or 133A(2);

(f) section 133B or 133C.




Section 128


128 When AUSTRAC information can be passed on by an official of

a designated agency

Other officials of the same agency


information to another official of the agency for the purposes of, or

in connection with, the performance of the other official’s duties in

relation to the agency.

Officials of another designated agency


information to another official of another designated agency for the

purposes of, or in connection with, the performance of the other

official’s duties in relation to the other designated agency, so long

as the other official holds an appropriate authorisation under

subsection 126(1).

Note: For disclosure to the Commissioner of Taxation and taxation officers, see subsection 125(2).

Court or tribunal proceedings etc.

(3) An official of a designated agency may:

(a) disclose AUSTRAC information to a person for the purposes

of, or in connection with:

(i) court or tribunal proceedings; or

(ii) proposed or possible court or tribunal proceedings; or

(iii) obtaining legal advice; or

(b) disclose AUSTRAC information in the course of court or

tribunal proceedings.

(4) Subsection (3) does not apply to AUSTRAC information that:

(a) was obtained under section 41; or

(b) was obtained under section 49, in so far as that section relates

to a communication under section 41; or

(c) was obtained under section 16 of the Financial Transaction

Reports Act 1988.

(5) A person to whom AUSTRAC information has been disclosed

under paragraph (3)(a) must not disclose the information to another

person.




Section 128


(6) Subsection (5) does not apply if:

(a) the disclosure is for the purposes of, or in connection with:

(i) the court or tribunal proceedings; or

(ii) the proposed or possible court or tribunal proceedings;

or

(iii) obtaining or giving the legal advice;

as the case may be; or

(b) the disclosure is authorised by this Division.




and




Investigations


information to a person for the purposes of, or in connection with,

an investigation or a proposed or possible investigation.

(9) Subsection (8) does not apply to AUSTRAC information that:





Reports Act 1988.


under subsection (8) must not disclose the information to another

person.

(11) Subsection (10) does not apply if the disclosure is for the purposes

of, or in connection with:

(a) the investigation or the proposed or possible investigation; or




Section 128


(b) court or tribunal proceedings, or any proposed or possible

court or tribunal proceedings, connected with the

investigation or proposed or possible investigation.




and




ASIS officials

(12A) The following provisions have effect:

(a) an ASIS official may disclose AUSTRAC information to an

IGIS official for the purposes of, or in connection with, the

performance of the IGIS official’s duties in relation to ASIS

or employees of ASIS;

(b) an ASIS official may disclose AUSTRAC information to the

ASIS Minister if the disclosure is for the purposes of, or in

connection with, the performance of the ASIS Minister’s

responsibilities in relation to ASIS;

(c) an ASIS official may disclose AUSTRAC information to a

Minister who, under section 9A of the Intelligence Services

Act 2001, is empowered to issue an authorisation in relation

to ASIS, if the disclosure is for the purposes of, or in

connection with, the exercise of that power.

(12B) Subsection (12A) does not limit the generality of any other

provision of this section.

ASIO officials

(13) The following provisions have effect:

(a) an ASIO official may disclose AUSTRAC information to an

IGIS official for the purposes of, or in connection with, the

performance of the IGIS official’s duties in relation to ASIO

or employees of ASIO;




Section 128


(b) an ASIO official may disclose AUSTRAC information to the

ASIO Minister if the disclosure is for the purposes of, or in

connection with:

(i) the performance of the ASIO Minister’s functions under

the Australian Security Intelligence Organisation Act

1979; or

(ii) security (within the meaning of that Act);

(c) an ASIO official may disclose AUSTRAC information to the

Minister responsible for the administration of the

Telecommunications (Interception and Access) Act 1979 if

the disclosure is for the purposes of, or in connection with,

the performance of that Minister’s functions under that Act;

(d) an ASIO official may disclose AUSTRAC information to a

Minister who, under section 9A of the Intelligence Services

Act 2001, is empowered to issue an authorisation in relation

to ASIS, if the disclosure is for the purposes of, or in

connection with, the exercise of that power.

(13A) Subsection (13) does not limit the generality of any other provision

of this section.

Defence intelligence officials

(13B) The following provisions have effect:

(a) an official of a defence intelligence agency may disclose

AUSTRAC information to an IGIS official for the purposes

of, or in connection with, the performance of the IGIS

official’s duties in relation to the defence intelligence agency

or employees of the defence intelligence agency;

(b) an official of a defence intelligence agency may disclose

AUSTRAC information to the Defence Minister if the

disclosure is for the purposes of, or in connection with, the

performance of the Defence Minister’s responsibilities in

relation to the defence intelligence agency;

(c) an official of a defence intelligence agency may disclose

AUSTRAC information to the Minister responsible for the

administration of the Telecommunications (Interception and

Access) Act 1979 if the disclosure is for the purposes of, or in

connection with, the performance of that Minister’s functions

under that Act;




Section 128


(d) an official of DIGO or DSD may disclose AUSTRAC

information to a Minister who, under section 9A of the

Intelligence Services Act 2001, is empowered to issue an

authorisation to DIGO or DSD, if the disclosure is for the

purposes of, or in connection with, the exercise of that

power.

ONA officials

(13C) The following provisions have effect:

(a) an official of ONA may disclose AUSTRAC information to

an IGIS official for the purposes of, or in connection with,

the performance of the IGIS official’s duties in relation to

ONA or employees of ONA;

(b) an official of ONA may disclose AUSTRAC information to

the Minister responsible for the administration of the

Telecommunications (Interception and Access) Act 1979 if

the disclosure is for the purposes of, or in connection with,

the performance of that Minister’s functions under that Act;

(c) an official of ONA may disclose AUSTRAC information to

the Prime Minister if the disclosure is for the purposes of, or

in connection with, the performance of the Prime Minister’s

responsibilities in relation to ONA.

(13D) Subsections (13B) and (13C) do not limit the generality of any

other provision of this section.

Australian Crime Commission officials

(14) The following provisions have effect:

(a) the Chief Executive Officer of the Australian Crime

Commission may, in a manner that does not identify, and is

not reasonably capable of being used to identify, a person to

whom AUSTRAC information relates, communicate the

information to the Board of the Australian Crime

Commission;

(b) the Chair of the Board of the Australian Crime Commission

may, in a manner that does not identify, and is not reasonably

capable of being used to identify, a person to whom

AUSTRAC information relates, communicate the

information to the Inter-Governmental Committee in a report




Section 128


by the Chair under subsection 59(4) of the Australian Crime

Commission Act 2002;

(c) the Chief Executive Officer of the Australian Crime

Commission may, in a manner that does not identify, and is

not reasonably capable of being used to identify, a person to

whom AUSTRAC information relates, communicate the

information to the Parliamentary Joint Committee on Law

Enforcement under subsection 8(1) of the Parliamentary

Joint Committee on Law Enforcement Act 2010;

(d) the Chief Executive Officer of the Australian Crime

Commission may communicate AUSTRAC information to

an examiner of the Australian Crime Commission who is

conducting an examination under Division 2 of Part II of the

Australian Crime Commission Act 2002;

(e) an examiner of the Australian Crime Commission may

disclose AUSTRAC information in the course of such an

examination before the examiner;

(f) a member of the staff of the Australian Crime Commission

may disclose AUSTRAC information for the purposes of, or

in connection with, the performance of the staff member’s

duties in relation to the Australian Crime Commission.

(14A) Subsection (14) does not limit the generality of any other provision

of this section.

Disclosure to responsible Ministers

(15) If a designated agency is established by law of the Commonwealth,

an official of the agency may disclose AUSTRAC information to

the Minister responsible for the administration of so much of that

law as relates to the agency if the disclosure is for the purposes of,

or in connection with, the performance of the Minister’s

responsibilities in relation to the agency.

(16) If a designated agency is a Department of the Commonwealth, an

official of the agency may disclose AUSTRAC information to the

Minister responsible for the agency if the disclosure is for the

purposes of, or in connection with, the performance of the

Minister’s responsibilities in relation to the agency.

(17) If a designated agency is established by law of a State or Territory,

an official of the agency may disclose AUSTRAC information to

the State or Territory Minister responsible for the administration of




Section 128


so much of that law as relates to the agency if the disclosure is for

the purposes of, or in connection with, the performance of the State

or Territory Minister’s responsibilities in relation to the agency.

(18) If a designated agency is a Department of a State or Territory, an

official of the agency may disclose AUSTRAC information to the

State or Territory Minister responsible for the agency if the

disclosure is for the purposes of, or in connection with, the

performance of the State or Territory Minister’s responsibilities in

relation to the agency.

IGIS officials

(19) An IGIS official may:

(a) disclose AUSTRAC information to another IGIS official for

the purposes of, or in connection with, the performance of

that official’s duties in relation to the following designated

agencies, or employees of the following designated agencies:

(i) ASIO;

(ii) ASIS;

(iii) a defence intelligence agency;

(iv) ONA;

(v) any other Commonwealth agency (within the meaning

of the Inspector-General of Intelligence and Security

Act 1986); or

(b) disclose AUSTRAC information by means of including the

information in a draft report, or a report, under Division 4 of

the Inspector-General of Intelligence and Security Act 1986;

or

(c) disclose AUSTRAC information under section 23 of the

Inspector-General of Intelligence and Security Act 1986; or

(h) disclose AUSTRAC information in a notice under section 12

of the Inspector-General of Intelligence and Security Act

1986.

(20) Subsection (19) does not limit the generality of any other provision

of this section.




Section 129


Subdivision C—Access by non-designated Commonwealth

agencies to AUSTRAC information

129 Access by non-designated Commonwealth agencies to

AUSTRAC information

(1) If an official of a non-designated Commonwealth agency makes an

application to the AUSTRAC CEO for access to AUSTRAC

information for the purposes of:

(a) an investigation of a possible breach of a law of the

Commonwealth; or

(b) a proposed investigation of a possible breach of a law of the

Commonwealth;

the AUSTRAC CEO may, in writing, authorise the official to have

access to AUSTRAC information for those purposes.



instrument.

AUSTRAC information, or class of AUSTRAC information, to

which access is authorised

(3) An authorisation under subsection (1) must state the AUSTRAC

information, or the class of AUSTRAC information, to which the

official of the non-designated Commonwealth agency is to have

access.

130 Dealings with AUSTRAC information once accessed

(1) This section restricts what a person (the entrusted Commonwealth

agency official) who is or was an official of a non-designated

Commonwealth agency may do with accessed information.

(2) The entrusted Commonwealth agency official commits an offence

if:

(a) the official has obtained accessed information; and






Section 131



subsection (2):

(a) the disclosure is for the purposes of, or in connection with,

the performance of the official’s duties in connection with

the investigation or proposed investigation concerned;

(b) the disclosure is in connection with communicating

AUSTRAC information under section 131.


(3A) Paragraph (3)(a) does not apply to AUSTRAC information that:





Reports Act 1988.

(4) Accessed information is AUSTRAC information obtained by the

entrusted Commonwealth agency official under subsection 129(1)

or 131(2).

131 When AUSTRAC information can be passed on by an official of

a non-designated Commonwealth agency

Scope

(1) This section applies if AUSTRAC information is disclosed to an

official of a non-designated Commonwealth agency for the

purposes of an investigation or proposed investigation.

Disclosure to other officials of the same agency

(2) The official may disclose the AUSTRAC information to another

official of the agency for the purposes of, or in connection with, the

performance of the other official’s duties in relation to the

investigation or proposed investigation.

Disclosure for the purposes of court or tribunal proceedings

(3) The official may disclose the AUSTRAC information to a person

for the purposes of, or in connection with, court or tribunal




Section 132


proceedings, or proposed or possible court or tribunal proceedings,

connected with the investigation or proposed investigation.

(3A) Subsection (3) does not apply to AUSTRAC information that:





Reports Act 1988.


under subsection (3) must not disclose the information to another

person.

(5) Subsection (4) does not apply if the disclosure is for the purposes

of, or in connection with, the court or tribunal proceedings or the

proposed or possible court or tribunal proceedings.




and




years or 120 penalty units, or both.

Subdivision D—Communication of AUSTRAC information to

foreign countries etc.

132 Communication of AUSTRAC information to a foreign country

etc.

Foreign country

(1) The AUSTRAC CEO may communicate AUSTRAC information

to the government of a foreign country if the AUSTRAC CEO is

satisfied that:

(a) the government of the foreign country has given appropriate

undertakings for:




Section 132


(i) protecting the confidentiality of the information; and

(ii) controlling the use that will be made of it; and

(iii) ensuring that the information will be used only for the

purpose for which it is communicated to the government

of the foreign country; and

(b) it is appropriate, in all the circumstances of the case, to

communicate the information to the government of the

foreign country.

Foreign law enforcement agency—access by Commissioner of the

Australian Federal Police to AUSTRAC information

(2) The AUSTRAC CEO may, in writing, authorise the Commissioner

of the Australian Federal Police to have access to AUSTRAC

information for the purposes of communicating the information to

a foreign law enforcement agency under subsection (3).


When the Commissioner of the Australian Federal Police may

communicate AUSTRAC information to a foreign law enforcement

agency

(3) The Commissioner of the Australian Federal Police may

communicate AUSTRAC information to a foreign law

enforcement agency if the Commissioner is satisfied that:

(a) the foreign law enforcement agency has given appropriate

undertakings for:




purpose for which it is communicated to the foreign law

enforcement agency; and

(b) it is appropriate, in all the circumstances of the case, to do so.

(4) The Commissioner of the Australian Federal Police may, in

writing, authorise a member of the Australian Federal Police to

access the AUSTRAC information and communicate it to the

foreign law enforcement agency on behalf of the Commissioner.





Section 132


Foreign law enforcement agency—access by Chief Executive

Officer of the Australian Crime Commission to AUSTRAC

information

(5) The AUSTRAC CEO may, in writing, authorise the Chief

Executive Officer of the Australian Crime Commission to have

access to AUSTRAC information for the purposes of

communicating the information to a foreign law enforcement

agency under subsection (6).


When the Chief Executive Officer of the Australian Crime

Commission may communicate AUSTRAC information to a foreign

law enforcement agency

(6) The Chief Executive Officer of the Australian Crime Commission

may communicate AUSTRAC information to a foreign law

enforcement agency if the Chief Executive Officer of the

Australian Crime Commission is satisfied that:

(a) the foreign law enforcement agency has given appropriate

undertakings for:




purpose for which it is communicated to the foreign law

enforcement agency; and


(7) The Chief Executive Officer of the Australian Crime Commission

may, in writing, authorise a member of the staff of the Australian

Crime Commission to access the AUSTRAC information and

communicate it to the foreign law enforcement agency on behalf of

the Chief Executive Officer of the Australian Crime Commission.





Section 133


133 When the Director-General of Security may communicate

AUSTRAC information to a foreign intelligence agency

(1) The Director-General of Security may communicate AUSTRAC

information to a foreign intelligence agency if the Director-General

is satisfied that:

(a) the foreign intelligence agency has given appropriate

undertakings for:




purpose for which it is communicated to the foreign

country; and


(2) The Director-General of Security may, in writing, authorise an

ASIO official to access the AUSTRAC information and

communicate it to the foreign intelligence agency on the

Director-General’s behalf.


133A When the Director-General of ASIS may communicate


(1) The Director-General of ASIS may communicate AUSTRAC


is satisfied that:


undertakings for:





country; and


(2) The Director-General of ASIS may, in writing, authorise an ASIS

official to access the AUSTRAC information and communicate it

to the foreign intelligence agency on the Director-General’s behalf.




Section 133B



133B When the Director of a defence intelligence agency may

communicate AUSTRAC information to a foreign

intelligence agency

(1) The Director of a defence intelligence agency may communicate

AUSTRAC information to a foreign intelligence agency if the

Director is satisfied that:


undertakings for:





country; and


(2) The Director of a defence intelligence agency may, in writing,

authorise an official of the defence intelligence agency to access

the AUSTRAC information and communicate it to the foreign

intelligence agency on the Director’s behalf.


133C When the Director-General of ONA may communicate


(1) The Director-General of ONA may communicate AUSTRAC


is satisfied that:


undertakings for:





country; and





Section 133C


(2) The Director-General of ONA may, in writing, authorise an official

of ONA to access the AUSTRAC information and communicate it

to the foreign intelligence agency on the Director-General’s behalf.




Division 5 Use of AUSTRAC information in court or tribunal proceedings

Section 134


Division 5—Use of AUSTRAC information in court or

tribunal proceedings

134 Use of AUSTRAC information in court or tribunal proceedings

A person who obtains AUSTRAC information is not to be

required:

(a) to produce in a court or tribunal a document containing

AUSTRAC information; or

(b) to disclose to any court or tribunal any AUSTRAC

information;

except where it is necessary to do so for the purposes of carrying

into effect the provisions of this Act or the Financial Transaction

Reports Act 1988.


Offences Part 12

Section 135


Part 12—Offences



• It is an offence to:

(a) produce false or misleading information; or

(b) produce a false or misleading document; or

(c) forge a document for use in an applicable customer

identification procedure; or

(d) provide or receive a designated service using a

false customer name or customer anonymity; or

(e) structure a transaction to avoid a reporting

obligation under this Act.

136 False or misleading information


(a) the person gives information to:

(i) the AUSTRAC CEO; or

(ii) an authorised officer; or

(iii) a customs officer; or

(iv) a police officer; or

(v) a reporting entity; or

(vi) a person acting on a reporting entity’s behalf; and

(b) the person does so knowing that the information:

(i) is false or misleading; or

(ii) omits any matter or thing without which the information

is misleading; and

(c) the information is given, or purportedly given, under this Act.


Part 12 Offences

Section 137


Penalty: Imprisonment for 10 years or 10,000 penalty units, or

both.

(2) Subsection (1) does not apply as a result of subparagraph (1)(b)(i)

if the information is not false or misleading in a material particular.


(3) Subsection (1) does not apply as a result of subparagraph (1)(b)(ii)

if the information did not omit any matter or thing without which

the information is misleading in a material particular.


(4) Strict liability applies to the paragraph (1)(c) element of the

offence.


137 Producing false or misleading documents


(a) the person produces a document to:

(i) the AUSTRAC CEO; or

(ii) an authorised officer; or

(iii) a customs officer; or

(iv) a police officer; or

(v) a reporting entity; or

(vi) a person acting on a reporting entity’s behalf; and

(b) the person does so knowing that the document is false or

misleading; and

(c) the document is produced, or purportedly produced, under

this Act.


both.

(2) Subsection (1) does not apply if the document is not false or

misleading in a material particular.



Offences Part 12

Section 138



offence.


138 False documents

Making a false document


(a) the person makes a false document with the intention that the

person or another will produce the false document in the

course of an applicable customer identification procedure;

and

(b) the applicable customer identification procedure is under this

Act.


both.

(2) In a prosecution for an offence against subsection (1), it is not

necessary to prove that the defendant knew that the applicable

customer identification procedure is under this Act.

Possessing a false document


(a) the person knows that a document is a false document; and

(b) the person has it in his or her possession with the intention

that the person or another will produce it in the course of an

applicable customer identification procedure; and

(c) the applicable customer identification procedure is under this

Act.


both.

(4) In a prosecution for an offence against subsection (3), it is not

necessary to prove that the defendant knew that the applicable

customer identification procedure is under this Act.


Part 12 Offences

Section 139


Possessing equipment for making a false document

(5) A person commits an offence if the person:

(a) knows that a device, material or other thing is designed or

adapted for the making of a false document (whether or not

the device, material or thing is designed or adapted for

another purpose); and

(b) has the device, material or thing in his or her possession with

the intention that the person or another person will use it to

commit an offence against subsection (1).


both.

Making equipment for making a false document

(6) A person commits an offence if the person:

(a) makes or adapts a device, material or other thing; and

(b) knows that the device, material or other thing is designed or

adapted for the making of a false document (whether or not

the device, material or thing is designed or adapted for

another purpose); and

(c) makes or adapts the device, material or thing with the

intention that the person or another person will use it to

commit an offence against subsection (1).


both.

Interpretation

(7) An expression used in this section that is also used in Part 7.7 of

the Criminal Code has the same meaning as in that Part.

Note: See also section 10.5 of the Criminal Code (lawful authority).

139 Providing a designated service using a false customer name or

customer anonymity


(a) the person is a reporting entity; and

(b) the person commences to provide a designated service; and

(c) the person does so using a false customer name; and


Offences Part 12

Section 140


(d) at least one provision of Division 2, 3 or 4 of Part 2 applies to

the provision of the designated service.


(2) Strict liability applies to the paragraph (1)(d) element of the

offence.



(a) the person is a reporting entity; and

(b) the person commences to provide a designated service; and

(c) the person does so on the basis of customer anonymity; and

(d) at least one provision of Division 2, 3 or 4 of Part 2 applies to



(4) Strict liability applies to the paragraph (3)(d) element of the

offence.


140 Receiving a designated service using a false customer name or

customer anonymity


(a) the person commences to receive a designated service; and

(b) the person does so using a false customer name; and

(c) at least one provision of Division 2, 3 or 4 of Part 2 applies to




offence.



(a) the person commences to receive a designated service; and

(b) the person does so on the basis of customer anonymity; and

(c) at least one provision of Division 2, 3 or 4 of Part 2 applies to



Part 12 Offences

Section 141




offence.


141 Customer commonly known by 2 or more different names—

disclosure to reporting entity


(a) the person commences to receive a designated service

provided by a reporting entity; and

(b) the person is commonly known by 2 or more different names;

and

(c) the person commences to receive the designated service

using one of those names; and

(d) the person has not previously disclosed the other name or

names to the reporting entity; and

(e) at least one provision of Division 2, 3 or 4 of Part 2 applies to



(2) Strict liability applies to the paragraph (1)(e) element of the

offence.


142 Conducting transactions so as to avoid reporting requirements

relating to threshold transactions

(1) A person (the first person) commits an offence if:

(a) the first person is, or causes another person to become, a

party to 2 or more non-reportable transactions; and

(b) having regard to:

(i) the manner and form in which the transactions were

conducted, including the matters to which subsection (3)

applies; and

(ii) any explanation made by the first person as to the

manner or form in which the transactions were

conducted;


Offences Part 12

Section 143


it would be reasonable to conclude that the first person

conducted, or caused the transactions to be conducted, in that

manner or form for the sole or dominant purpose of ensuring,

or attempting to ensure, that the money or property involved

in the transactions was transferred in a manner and form that

would not give rise to a threshold transaction that would have

been required to have been reported under section 43.


(2) Subsection (1) does not apply if the defendant proves that the first

person did not conduct the transactions, or cause the transactions to

be conducted, as the case may be, for the sole or dominant purpose

of ensuring, or attempting to ensure, that the money or property

involved in the transactions was transferred in a manner and form

that would not give rise to a threshold transaction that would have

been required to have been reported under section 43.

Note: A defendant bears a legal burden in relation to the matters in subsection (2)—see section 13.4 of the Criminal Code.

(3) This subsection applies to the following matters:

(a) the value of the money or property involved in each

transaction;

(b) the total value of the transactions;

(c) the period of time over which the transactions took place;

(d) the interval of time between any of the transactions;

(e) the locations at which the transactions took place.

143 Conducting transfers so as to avoid reporting requirements

relating to cross-border movements of physical currency

(1) A person (the first person) commits an offence if:

(a) the first person conducts, or causes another person to

conduct, 2 or more non-reportable cross-border movements

of physical currency; and

(b) having regard to:

(i) the manner and form in which the movements were

conducted, including the matters to which subsection (3)

applies; and


Part 12 Offences

Section 143


(ii) any explanation made by the first person as to the

manner or form in which the movements were

conducted;

it would be reasonable to conclude that the first person

conducted the movements, or caused the movements to be

conducted, as the case may be, in that manner or form for the

sole or dominant purpose of ensuring, or attempting to

ensure, that no report in relation to the physical currency

involved in the movements would be made under section 53.


(2) Subsection (1) does not apply if the defendant proves that the first

person did not conduct the movements, or cause the movements to

be conducted, as the case may be, for the sole or dominant purpose

of ensuring, or attempting to ensure, that no report in relation to the

physical currency involved in the movements would be made

under section 53.

Note: A defendant bears a legal burden in relation to the matters in subsection (2)—see section 13.4 of the Criminal Code.

(3) This subsection applies to the following matters:

(a) the total amount of the physical currency involved in each

movement;

(b) the total amount of the physical currency involved in the

movements;

(c) the period of time over which the movements occurred;

(d) the interval of time between any of the movements;

(e) the locations at which the movements were initiated or

conducted.


Audit Part 13


Section 144


Part 13—Audit




• An authorised officer may enter any reporting entity business

premises:

(a) with the occupier’s consent; or

(b) under a monitoring warrant.

• An authorised officer who enters any reporting entity business

premises may exercise monitoring powers.

• The AUSTRAC CEO may require a reporting entity to carry

out an external audit or a money laundering and terrorism

financing risk assessment.


Part 13 Audit

Division 2 Appointment of authorised officers and issue of identity cards

Section 145


Division 2—Appointment of authorised officers and issue

of identity cards

145 Appointment of authorised officers

(1) The AUSTRAC CEO may, in writing, appoint a member of the

staff of AUSTRAC, or a person whose services are made available

to the AUSTRAC CEO under subsection 225(3), to be an

authorised officer for the purposes of this Act.

Note: For revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) The AUSTRAC CEO must not appoint a person to be an

authorised officer unless the person satisfies the conditions (if any)

specified in the regulations.

(3) In exercising powers or performing functions as an authorised

officer, an authorised officer must comply with any directions of

the AUSTRAC CEO.

146 Identity cards

(1) The AUSTRAC CEO must issue an identity card to an authorised

officer.

(2) The identity card must

(a) be in a form approved in writing by the AUSTRAC CEO;

and

(b) contain a recent photograph of the authorised officer.


(a) the person has been issued with an identity card; and

(b) the person ceases to be an authorised officer; and

(c) the person does not, within 3 business days after so ceasing,

return the identity card to the AUSTRAC CEO.

Penalty: 1 penalty unit.


Audit Part 13

Appointment of authorised officers and issue of identity cards Division 2

Section 146


(4) Subsection (3) does not apply if the person has a reasonable

excuse.


(5) An authorised officer must carry the identity card at all times when

exercising powers or performing functions as an authorised officer

under this Part.


Part 13 Audit

Division 3 Powers of authorised officers

Section 147


Division 3—Powers of authorised officers

Subdivision A—Monitoring powers

147 Authorised officer may enter premises by consent or under a

monitoring warrant

(1) For the purposes of determining whether the provisions of this Act,

the regulations or the AML/CTF Rules have been complied with,

an authorised officer may:

(a) enter any reporting entity business premises at any

reasonable time of the day; and

(b) exercise the monitoring powers set out in section 148.

(2) An authorised officer is not authorised to enter premises under

subsection (1) unless:

(a) the occupier of the premises has consented to the entry and

the officer has shown his or her identity card if required by

the occupier; or

(b) the entry is made under a monitoring warrant.

Note: Monitoring warrants are issued under section 159.

(3) If an authorised officer is on the premises with the consent of the

occupier, the authorised officer must leave the premises if the

occupier asks the authorised officer to do so.

148 Monitoring powers of authorised officers

(1) For the purposes of this Act, the following are the monitoring

powers that an authorised officer may exercise, in relation to

premises, under section 147:

(a) the power to search the premises for any compliance records

that:

(i) are kept at, or accessible from, the premises; and

(ii) relate to a reporting entity;

(b) the power to search the premises for any system used by a

reporting entity at the premises for keeping those records;

(c) the power to search the premises for any reports under this

Act that are retained at, or accessible from, the premises;


Audit Part 13

Powers of authorised officers Division 3

Section 148


(d) the power to search the premises for any system used by a

reporting entity in connection with:

(i) preparing reports under this Act; or

(ii) sending such reports to the AUSTRAC CEO; or

(iii) retaining such reports;

(e) the power to search the premises for any other thing on the

premises that may be relevant to the obligations of a

reporting entity under this Act, the regulations or the

AML/CTF Rules;

(f) the power to examine any activity conducted on the premises

that may relate to information provided under this Act, the

regulations or the AML/CTF Rules;

(g) the power to examine any thing on the premises that may

relate to information provided under this Act, the regulations

or the AML/CTF Rules;

(h) the power to take photographs or make video or audio

recordings or sketches on the premises of any such activity or

thing;

(i) the power to inspect any document on the premises that may

relate to information provided under this Act, the regulations

or the AML/CTF Rules;

(j) the power to take extracts from, or make copies of, any such

document;

(k) the power to take onto the premises such equipment and

materials as the authorised officer requires for the purpose of

exercising powers in relation to the premises;

(l) the powers set out in subsections (2), (3) and (4).

(2) For the purposes of this Act, monitoring powers include the power

to secure a thing for no more than 24 hours if:

(a) the thing is found during the exercise of monitoring powers

on the premises; and

(b) an authorised officer believes on reasonable grounds that:

(i) the thing affords evidence of the commission of an

offence against this Act or the regulations, or evidence

of the commission of an offence against the Crimes Act

1914 or the Criminal Code that relates to this Act or the

regulations; and


Part 13 Audit


Section 149


(ii) it is necessary to secure the thing in order to prevent it

from being concealed, lost or destroyed before a warrant

to seize the thing is obtained; and

(iii) the circumstances are serious and urgent.

(3) For the purposes of this Act, monitoring powers include the power

to operate equipment at the premises to see whether:

(a) the equipment; or

(b) a data storage device that:

(i) is at the premises; and

(ii) can be used with the equipment or is associated with it;

contains information that is relevant to assessing the correctness of

information provided under this Act.

(4) For the purposes of this Act, monitoring powers include the

following powers in relation to information described in

subsection (3) found in the exercise of the power under that

subsection:

(a) the power to operate facilities at the premises to put the

information in documentary form and copy the documents so

produced;

(b) the power to operate facilities at the premises to transfer the

information to a disk, tape or other storage device that:

(i) is brought to the premises for the exercise of the power;

or

(ii) is at the premises and the use of which for the purpose

has been agreed in writing by the occupier of the

premises;

(c) the power to remove from the premises a disk, tape or other

storage device to which the information has been transferred

in exercise of the power under paragraph (b).

149 Tampering or interfering with things secured in the exercise of

monitoring powers


(a) a thing has been secured by an authorised officer in the

exercise of the monitoring powers set out in section 148; and

(b) the person tampers or interferes with the thing.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.


Audit Part 13

Powers of authorised officers Division 3

Section 150


Subdivision B—Powers of authorised officers to ask questions

and seek production of documents

150 Authorised officer may ask questions and seek production of

documents

(1) If the authorised officer was authorised to enter premises because

the occupier of the premises consented to the entry, the authorised

officer may ask the occupier to:

(a) answer any questions relating to the operation of this Act, the

regulations or the AML/CTF Rules that are put by the

authorised officer; and

(b) produce any document relating to the operation of this Act,

the regulations or the AML/CTF Rules that is requested by

the authorised officer.

(2) If the authorised officer was authorised to enter the premises by a

monitoring warrant, the authorised officer may require any person

in or on the premises to:

(a) answer any questions relating to the operation of this Act, the

regulations or the AML/CTF Rules that are put by the

authorised officer; and

(b) produce any document relating to the operation of this Act,

the regulations or the AML/CTF Rules that is requested by

the authorised officer.




and




Self-incrimination

(4) A person is not excused from answering a question or producing a

document under subsection (2) on the ground that the answering of

the question or the production of the document might tend to

incriminate the person or expose the person to a penalty.


Part 13 Audit


Section 150


(5) However:

(a) the answer given or the document produced; or

(b) answering the question or producing the document;


(c) in civil proceedings other than proceedings under the

Proceeds of Crime Act 2002 that relate to this Act; or


(i) proceedings for an offence against subsection (3); or

(ii) proceedings for an offence against section 136 or 137

that relates to this section; or

(iii) proceedings for an offence against section 137.1 or

137.2 of the Criminal Code that relates to this section.


Audit Part 13

Obligations and incidental powers of authorised officers Division 4

Section 151


Division 4—Obligations and incidental powers of

authorised officers

151 Authorised officer must produce identity card on request

An authorised officer is not entitled to exercise any powers under

this Part in relation to premises if:

(a) the occupier of the premises requires the authorised officer to

produce his or her identity card for inspection by the

occupier; and

(b) the authorised officer fails to comply with the requirement.

152 Consent

(1) Before obtaining the consent of a person for the purposes of

paragraph 147(2)(a), the authorised officer must inform the person

that he or she may refuse consent.

(2) An entry of an authorised officer because of the consent of a

person is not lawful unless the person voluntarily consented to the

entry.

(3) The consent may be expressed to be limited to entry during a

particular period unless the consent is withdrawn before the end of

that period.

(4) A consent that is not limited as mentioned in subsection (3) has

effect until the consent is withdrawn.

(5) If an authorised officer entered premises because of the consent of

a person, the authorised officer must leave the premises if the

person withdraws the consent.

153 Announcement before entry

An authorised officer executing a monitoring warrant must, before

entering premises under the warrant:

(a) announce that he or she is authorised to enter the premises;

and


Part 13 Audit

Division 4 Obligations and incidental powers of authorised officers

Section 154


(b) give any person at the premises an opportunity to allow entry

to the premises.


154 Details of monitoring warrant to be given to occupier etc. before

entry

(1) If:

(a) a monitoring warrant is being executed in relation to

premises; and

(b) either:

(i) the occupier of the premises is present at the premises;

or

(ii) the occupier of the premises is not present at the

premises, but another person who apparently represents

the occupier is present at the premises;

the authorised officer must make a copy of the warrant available

to:

(c) if subparagraph (b)(i) applies—the occupier of the premises;

or

(d) if subparagraph (b)(ii) applies—the person who apparently

represents the occupier.

(2) The authorised officer must identify himself or herself to that

person.

(3) The copy of the warrant mentioned in subsection (1) need not

include the signature of the magistrate who issued the warrant.


155 Use of electronic equipment in exercising monitoring powers

(1) This section applies to the following premises:

(a) premises that an authorised officer has entered, and remains

on, with the consent of the occupier;

(b) warrant premises.

(2) An authorised officer or a person assisting that officer may operate

electronic equipment already at the premises in order to exercise

monitoring powers if he or she believes, on reasonable grounds,


Audit Part 13

Obligations and incidental powers of authorised officers Division 4

Section 155


that the operation of the equipment can be carried out without

damage to the equipment.

(3) If the authorised officer or a person assisting believes, on

reasonable grounds, that:

(a) there is on the premises material relating to information

provided under this Act, the regulations or the AML/CTF

Rules that may be accessible by operating electronic

equipment on the premises; and

(b) expert assistance is required to operate the equipment; and

(c) if he or she does not take action under this subsection, the

material may be destroyed, altered or otherwise interfered

with;

he or she may do whatever is necessary to secure the equipment,

whether by locking it up, placing a guard, or otherwise.

(4) The authorised officer or a person assisting must give notice to the

occupier of the premises of his or her intention to secure equipment

and of the fact that the equipment may be secured for up to 24

hours.

(5) The equipment may be secured:

(a) for a period not exceeding 24 hours; or

(b) until the equipment has been operated by the expert;

whichever first happens.

(6) If an authorised officer or a person assisting believes, on

reasonable grounds, that the expert assistance will not be available

within 24 hours, he or she may apply to a magistrate for an

extension of the period.

(7) The authorised officer or a person assisting must give notice to the

occupier of the premises of his or her intention to apply for an

extension. The occupier is entitled to be heard in relation to that

application.

(8) The provisions of this Part relating to the issue of monitoring

warrants apply, with such modifications as are necessary, to the

issue of an extension.


Part 13 Audit

Division 4 Obligations and incidental powers of authorised officers

Section 156


156 Compensation for damage to electronic equipment


(a) as a result of electronic equipment being operated as

mentioned in section 155:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or

with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person

who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the

user of the data or programs, such reasonable compensation for the

damage or corruption as the Commonwealth and the owner or user

agree on.

(3) However, if the owner or user and the Commonwealth fail to

agree, the owner or user may institute proceedings in the Federal

Court for such reasonable amount of compensation as the Court

determines.

(4) In determining the amount of compensation payable under

subsection (3), regard is to be had to whether the occupier of the

premises, or the occupier’s employees and agents, if they were

available at the time, provided any appropriate warning or

guidance on the operation of the equipment.

(5) Compensation is payable out of money appropriated by the

Parliament.


Audit Part 13

Occupier’s rights and responsibilities Division 5

Section 157


Division 5—Occupier’s rights and responsibilities

157 Occupier entitled to be present during execution of monitoring

warrant

(1) If:

(a) a monitoring warrant is being executed; and

(b) the occupier of the warrant premises, or another person who

apparently represents the occupier, is present at the premises;

the person is entitled to observe the execution of the warrant.

(2) The right to observe the execution of the warrant ceases if the

person impedes that execution.

(3) This section does not prevent the execution of the warrant in 2 or

more areas of the premises at the same time.


158 Occupier to provide authorised officer with facilities and

assistance

(1) The occupier of warrant premises, or another person who

apparently represents the occupier, must provide:

(a) the authorised officer executing the monitoring warrant; and

(b) any person assisting that officer;

with all reasonable facilities and assistance for the effective

exercise of their powers.




and



Penalty for contravention of this subsection: 30 penalty units.


Part 13 Audit

Division 6 Monitoring warrants

Section 159


Division 6—Monitoring warrants

159 Monitoring warrants

(1) An authorised officer may apply to a magistrate for a warrant

under this section in relation to reporting entity business premises.

Note: A warrant under this section is called a monitoring warrant.

(2) The magistrate may issue the warrant if the magistrate is satisfied,

by information on oath or affirmation, that it is reasonably

necessary that one or more authorised officers should have access

to the premises for the purposes of determining whether the

provisions of this Act, the regulations or the AML/CTF Rules have

been, or are being, complied with. This subsection has effect

subject to subsection (3).

(3) The magistrate must not issue the warrant unless the authorised

officer or some other person has given to the magistrate, either

orally or by affidavit, such further information (if any) as the

magistrate requires concerning the grounds on which the issue of

the warrant is being sought.

(4) The warrant must:

(a) contain a description of the premises to which the warrant

relates; and

(b) authorise one or more authorised officers (whether or not

named in the warrant), and any person or persons assisting

the authorised officer or authorised officers:

(i) to enter the premises; and

(ii) to exercise the powers set out in section 148 in relation

to the premises; and

(c) state whether the entry is authorised to be made at any time

of the day or during specified hours of the day; and

(d) specify the day (not more than 6 months after the issue of the

warrant) on which the warrant ceases to have effect; and

(e) state the purpose for which the warrant is issued.


Audit Part 13

Monitoring warrants Division 6

Section 160


160 Magistrates—personal capacity

Functions conferred personally

(1) The functions conferred on a magistrate by section 159 are

conferred on the magistrate:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

Functions need not be accepted

(2) The magistrate need not accept the functions conferred.

Protection and immunity

(3) A magistrate performing a function conferred by section 159 has

the same protection and immunity as if he or she were performing

the function:

(a) as the court of which the magistrate is a member; or

(b) as a member of the court of which the magistrate is a

member.


Part 13 Audit

Division 7 External audits

Section 161


Division 7—External audits

161 External audits—risk management etc.

Scope

(1) This section applies if the AUSTRAC CEO has reasonable grounds

to suspect that a reporting entity has not taken, or is not taking,

appropriate action to:

(a) identify; and

(b) mitigate; and

(c) manage;

the risk the reporting entity may reasonably face that the provision

by the reporting entity of designated services at or through a

permanent establishment of the entity in Australia might (whether


(d) money laundering; or

(e) financing of terrorism.

Requirement

(2) The AUSTRAC CEO may, by written notice given to the reporting

entity, require the reporting entity to:

(a) appoint an external auditor; and

(b) arrange for the external auditor to carry out an external audit

of the reporting entity’s capacity and endeavours to:

(i) identify; and

(ii) mitigate; and

(iii) manage;





or facilitate:




Audit Part 13

External audits Division 7

Section 161


(c) arrange for the external auditor to give the reporting entity a

written report (the audit report) setting out the results of the

audit; and

(d) give the AUSTRAC CEO a copy of the audit report within:

(i) the period specified in the notice; or

(ii) if the AUSTRAC CEO allows a longer period—that

longer period.

(3) The notice must specify:

(a) the matters to be covered by the audit; and

(b) the form of the audit report and the kinds of details it is to

contain.

(4) The matters that may be specified under paragraph (3)(a) may

include either or both of the following:

(a) an assessment of the risk the reporting entity may reasonably

face that the provision by the reporting entity of designated

services at or through a permanent establishment of the

reporting entity in Australia might (whether inadvertently or

otherwise) involve or facilitate:

(i) money laundering; or

(ii) financing of terrorism;

(b) an assessment of what the reporting entity will need to do, or

continue to do, to:

(i) identify; and

(ii) mitigate; and

(iii) manage;





or facilitate:


(v) financing of terrorism.

(5) Subsection (4) does not limit paragraph (3)(a).


Part 13 Audit


Section 162


Eligibility for appointment as an external auditor

(6) An individual is not eligible to be appointed an external auditor by

a reporting entity if:

(a) the individual is an officer, employee or agent of the

reporting entity; or

(b) both:

(i) the reporting entity belongs to a designated business

group; and

(ii) the individual is an officer, employee or agent of

another member of the designated business group.

Offence



and




Civil penalty

(8) A reporting entity must comply with a requirement under

subsection (2).


162 External audits—compliance

(1) This section applies if the AUSTRAC CEO has reasonable grounds

to suspect that a reporting entity has contravened, is contravening,

or is proposing to contravene, this Act, the regulations or the

AML/CTF Rules.



(a) appoint an external auditor; and

(b) arrange for the external auditor to carry out an external audit

of whichever of the following is specified in the notice:


Audit Part 13


Section 162


(i) the reporting entity’s compliance with this Act, the

regulations and the AML/CTF Rules;

(ii) one or more specified aspects of the reporting entity’s

compliance with this Act, the regulations and the

AML/CTF Rules; and

(c) arrange for the external auditor to give the reporting entity a

written report (the audit report) setting out the results of the

audit; and

(d) give the AUSTRAC CEO a copy of the audit report within:



longer period.

(3) The notice must specify:

(a) the matters to be covered by the audit; and

(b) the form of the audit report and the kinds of details it is to

contain.

(4) The matters that may be specified under paragraph (3)(a) may

include either or both of the following:

(a) an assessment of the reporting entity’s existing capacity to

comply with this Act, the regulations and the AML/CTF

Rules;

(b) an assessment of what the reporting entity will need to do, or

continue to do, to comply with this Act, the regulations and

the AML/CTF Rules.

(5) Subsection (4) does not limit paragraph (3)(a).

Eligibility for appointment as an external auditor

(6) An individual is not eligible to be appointed an external auditor by

a reporting entity if:

(a) the individual is an officer, employee or agent of the

reporting entity; or

(b) both:

(i) the reporting entity belongs to a designated business

group; and

(ii) the individual is an officer, employee or agent of

another member of the designated business group.


Part 13 Audit


Section 163


Offence



and




Civil penalty


subsection (2).


163 External auditor may have regard to the results of previous

audit

In carrying out an external audit in accordance with a notice under

section 161 or 162, an external auditor may, if:

(a) an external audit was completed under that section within the

last preceding 2 years; and

(b) the external auditor is satisfied that the previous audit is still

relevant;

have regard to the results of the previous audit.

164 External auditors

(1) The AUSTRAC CEO may, by writing, authorise a specified

individual to be an external auditor for the purposes of this Act.

Note 1: For specification by class, see subsection 46(3) of the Acts Interpretation Act 1901.

Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.


instrument.


Audit Part 13


Section 164A


164A Review of decisions


for review of decisions of the AUSTRAC CEO under section 161.

(2) In this section:

decision has the same meaning as in the Administrative Appeals

Tribunal Act 1975.


Part 13 Audit

Division 8 Money laundering and terrorism financing risk assessments

Section 165


Division 8—Money laundering and terrorism financing

risk assessments

165 Money laundering and terrorism financing risk assessments

Scope

(1) This section applies if the AUSTRAC CEO is satisfied that:

(a) a reporting entity has not carried out a money laundering and

terrorism financing risk assessment; or

(b) a reporting entity has carried out a money laundering and

terrorism financing risk assessment, but the assessment has

ceased to be current; or

(c) a reporting entity has carried out a money laundering and

terrorism financing risk assessment, but the assessment is

inadequate.

Requirement



(a) carry out a money laundering and terrorism financing risk

assessment; and

(b) prepare a written report setting out the results of the

assessment; and

(c) give the AUSTRAC CEO a copy of the report within:



longer period.



and





Audit Part 13

Money laundering and terrorism financing risk assessments Division 8

Section 165


Civil penalty


subsection (2).


Money laundering and terrorism financing program risk

assessment

(6) For the purposes of this Act, a money laundering and terrorism

financing risk assessment is an assessment by a reporting entity

of:

(a) the risk the reporting entity may reasonably face that the




or facilitate:

(i) money laundering; or

(ii) financing of terrorism; and

(b) what the reporting entity will need to do, or continue to do,

to:

(i) identify; and

(ii) mitigate; and

(iii) manage;





or facilitate:


(v) financing of terrorism.


Part 14 Information-gathering powers

Section 166


Part 14—Information-gathering powers



• An authorised officer may obtain information or documents.

167 Authorised officer may obtain information and documents

Scope

(1) This section applies to a person if an authorised officer believes on

reasonable grounds that:

(a) any of the following subparagraphs applies:

(i) the person is or has been a reporting entity;

(ii) the person is or has been an officer, employee or agent

of a reporting entity;

(iii) the person’s name is or has been entered on the

Remittance Sector Register; and

(b) the person has information or a document that is relevant to

the operation of this Act, the regulations or the AML/CTF

Rules.

Requirement

(2) The authorised officer may, by written notice given to the person,

require the person:

(a) to give to the authorised officer, within the period and in the

manner specified in the notice, any such information; or

(b) to produce to the authorised officer, within the period and in

the manner specified in the notice, any such documents; or

(c) to make copies of any such documents and to produce to the

authorised officer, within the period and in the manner

specified in the notice, those copies.


Information-gathering powers Part 14

Section 168


Offence


(a) the person has been given a notice under subsection (2); and

(b) the person omits to do an act; and

(c) the omission contravenes a requirement in the notice.


Notice to set out the effect of offence provisions

(4) A notice under subsection (2) must set out the effect of the

following provisions:

(a) subsection (3);

(b) section 136;

(c) section 137.

Note 1: Section 136 is about giving false or misleading information.

Note 2: Section 137 is about producing false or misleading documents.

168 Copying documents—reasonable compensation

A person is entitled to be paid reasonable compensation for

complying with a requirement covered by paragraph 167(2)(c).


(1) A person is not excused from giving information or producing a

document under section 167 on the ground that the information or

the production of the document might tend to incriminate the

person or expose the person to a penalty.

(2) However:

(a) the information given or the document produced; or

(b) giving the information or producing the document;


(c) in civil proceedings other than proceedings under the

Proceeds of Crime Act 2002 that relate to this Act; or


(i) proceedings for an offence against subsection 167(3); or

(ii) proceedings for an offence against section 136 or 137

that relates to this Part; or


Part 14 Information-gathering powers

Section 170


(iii) proceedings for an offence against section 137.1 or

137.2 of the Criminal Code that relates to this Part.

170 Copies of documents

An authorised officer may inspect a document produced under this

Part and may make and retain copies of, or take and retain extracts

from, such a document.

171 Authorised officer may retain documents

(1) An authorised officer may take possession of a document produced

under this Part, and retain it for as long as is reasonably necessary.

(2) The person otherwise entitled to possession of the document is

entitled to be supplied, as soon as practicable, with a copy certified

by the authorised officer to be a true copy.

(3) The certified copy must be received in all courts and tribunals as

evidence as if it were the original.

(4) Until a certified copy is supplied, the authorised officer must

provide the person otherwise entitled to possession of the

document, or a person authorised by that person, reasonable access

to the document for the purposes of inspecting and making copies

of, or taking extracts from, the document.


If a person, or an officer, employee or agent of a person, provides

information under a notice under subsection 167(2), the person,

officer, employee or agent is taken, for the purposes of




Enforcement Part 15


Section 173


Part 15—Enforcement




• Pecuniary penalties are payable for contraventions of civil

penalty provisions.

• Authorised officers, customs officers and police officers may

issue infringement notices for unreported cross-border

movements of physical currency and bearer negotiable

instruments.

• The AUSTRAC CEO is to monitor compliance by reporting

entities with their obligations under this Act, the regulations

and the AML/CTF Rules.

• The AUSTRAC CEO may give a remedial direction to a

reporting entity that has contravened a civil penalty provision.

• The Federal Court may grant injunctions in relation to

contraventions of civil penalty provisions.

• The AUSTRAC CEO may accept enforceable undertakings.

• Customs officers and police officers may exercise powers of

questioning, search and arrest in connection with a

cross-border movement of physical currency or bearer

negotiable instruments.


Part 15 Enforcement

Division 2 Civil penalties

Section 174


Division 2—Civil penalties

174 Ancillary contravention of civil penalty provision

(1) A person must not:

(a) attempt to contravene a civil penalty provision (other than

this subsection); or

(b) aid, abet, counsel or procure a contravention of a civil

penalty provision (other than this subsection); or

(c) induce, whether by threats or promises or otherwise, a

contravention of a civil penalty provision (other than this

subsection); or

(d) be in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention of a civil penalty provision (other

than this subsection); or

(e) conspire with others to effect a contravention of a civil

penalty provision (other than this subsection).

Civil penalty


175 Civil penalty orders

(1) If the Federal Court is satisfied that a person has contravened a

civil penalty provision, the Federal Court may order the person to

pay the Commonwealth a pecuniary penalty.

(2) An order under subsection (1) is to be known as a civil penalty

order.

Determining amount of pecuniary penalty

(3) In determining the pecuniary penalty, the Federal Court must have

regard to all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered as a

result of the contravention; and

(c) the circumstances in which the contravention took place; and


Enforcement Part 15

Civil penalties Division 2

Section 175


(d) whether the person has previously been found by the Federal

Court in proceedings under this Act to have engaged in any

similar conduct; and

(e) if the Federal Court considers that it is appropriate to do so—

whether the person has previously been found by a court in

proceedings under a law of a State or Territory to have

engaged in any similar conduct; and

(f) if the Federal Court considers that it is appropriate to do so—

whether the person has previously been found by a court in a

foreign country to have engaged in any similar conduct; and

(g) if the Federal Court considers that it is appropriate to do so—

whether the person has previously been found by a court in

proceedings under the Financial Transaction Reports Act

1988 to have engaged in any similar conduct.

Maximum pecuniary penalty

(4) The pecuniary penalty payable by a body corporate must not

exceed 100,000 penalty units.

(5) The pecuniary penalty payable by a person other than a body

corporate must not exceed 20,000 penalty units.

Conduct contravening more than one civil penalty provision

(6) If conduct constitutes a contravention of 2 or more civil penalty

provisions, proceedings may be instituted under this section against

a person in relation to the contravention of any one or more of

those provisions. However, the person is not liable to more than

one pecuniary penalty under this section in respect of the same

conduct.

Civil enforcement of penalty

(7) The pecuniary penalty is a civil debt payable to the

Commonwealth. The Commonwealth may enforce the civil penalty

order as if it were an order made in civil proceedings against the

person to recover a debt due by the person. The debt arising from

the order is taken to be a judgment debt.


Part 15 Enforcement

Division 2 Civil penalties

Section 176


176 Who may apply for a civil penalty order

(1) Only the AUSTRAC CEO may apply for a civil penalty order.

(2) Subsection (1) does not exclude the operation of the Director of

Public Prosecutions Act 1983.

177 2 or more proceedings may be heard together

The Federal Court may direct that 2 or more proceedings for civil

penalty orders are to be heard together.

178 Time limit for application for an order

Proceedings for a civil penalty order may be started no later than 6

years after the contravention.

179 Civil evidence and procedure rules for civil penalty orders

The Federal Court must apply the rules of evidence and procedure

for civil matters when hearing proceedings for a civil penalty

order.

180 Civil proceedings after criminal proceedings

The Federal Court must not make a civil penalty order against a

person for a contravention if the person has been convicted of an

offence constituted by conduct that is substantially the same as the

conduct constituting the contravention.

181 Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against a person are stayed if:

(a) criminal proceedings are started or have already been started

against the person for an offence; and

(b) the offence is constituted by conduct that is substantially the

same as the conduct alleged to constitute the contravention.

(2) The proceedings for the order may be resumed if the person is not

convicted of the offence. Otherwise, the proceedings for the order

are dismissed.


Enforcement Part 15

Civil penalties Division 2

Section 182


182 Criminal proceedings after civil proceedings

Criminal proceedings may be started against a person for conduct

that is substantially the same as conduct constituting a

contravention of a civil penalty provision regardless of whether a

civil penalty order has been made against the person.

183 Evidence given in proceedings for penalty not admissible in

criminal proceedings

Evidence of information given, or evidence of production of

documents, by an individual is not admissible in criminal

proceedings against the individual if:

(a) the individual previously gave the evidence or produced the

documents in proceedings for a civil penalty order against the

individual for a contravention of a civil penalty provision

(whether or not the order was made); and

(b) the conduct alleged to constitute the offence is substantially

the same as the conduct that was claimed to constitute the

contravention.

However, this does not apply to a criminal proceeding in respect of

the falsity of the evidence given by the individual in the

proceedings for the civil penalty order.


Part 15 Enforcement

Division 3 Infringement notices for certain contraventions

Section 184


Division 3—Infringement notices for certain

contraventions

184 When an infringement notice can be given

(1) If an authorised officer, a customs officer or a police officer has

reasonable grounds to believe that a person has contravened an

infringement notice provision, the officer may give the person an

infringement notice relating to the contravention.

(1A) An infringement notice provision means any of the following

provisions:

(aaa) subsection 51B(1) (which deals with the requirement for

reporting entities to enrol on the Reporting Entities Roll);

(aa) subsection 51F(1) (which deals with reporting entities

notifying changes of their enrolment details);

(a) subsection 53(3) (which deals with reports about movements

of physical currency);

(b) subsection 59(4) (which deals with reports about movements

of bearer negotiable instruments);

(c) subsections 74(1), (1A), (1B) and (1C) (which deal with

providing certain remittance services if unregistered or in

breach of a condition of registration);

(d) subsection 75M(1) (which deals with notifying the

AUSTRAC CEO of certain matters).

(2) The infringement notice must be given within 12 months after the

day on which the contravention is alleged to have taken place.

(3) If a customs officer or a police officer issues an infringement

notice, the officer must, within 5 business days after the day of

issue of the infringement notice, forward a copy of the

infringement notice to the AUSTRAC CEO.

185 Matters to be included in an infringement notice

(1) An infringement notice must:

(a) set out the name of the person to whom the notice is given;

and

(b) set out the name of the person who gave the notice; and


Enforcement Part 15

Infringement notices for certain contraventions Division 3

Section 186


(c) set out brief details relating to the alleged contravention of

the infringement notice provision, including the date of the

alleged contravention; and

(d) contain a statement to the effect that neither criminal nor civil

penalty proceedings will be brought in relation to the matter

if the penalty specified in the notice is paid to the AUSTRAC

CEO, on behalf of the Commonwealth, within:

(i) 28 days after the notice is given; or


longer period; and

(e) give an explanation of how payment of the penalty is to be

made; and

(f) set out such other matters (if any) as are specified in the

regulations.

(2) An infringement notice may specify more than one alleged

contravention of one or more infringement notice provisions. If it

does so, the infringement notice must set out the details referred to

in paragraph (1)(c) in relation to each alleged contravention.

186 Amount of penalty—breaches of subsection 53(3) or 59(4)

(1) The penalty to be specified in an infringement notice relating to an

alleged contravention of subsection 53(3) must be a pecuniary

penalty equal to:

(a) if the total amount of the physical currency involved in the

alleged contravention is $20,000 or more—5 penalty units; or

(b) otherwise—2 penalty units.

(2) The penalty to be specified in an infringement notice relating to an

alleged contravention of subsection 59(4) must be a pecuniary

penalty equal to:

(a) if the total value of the bearer negotiable instruments

involved in the alleged contravention is $20,000 or more—5

penalty units; or



Part 15 Enforcement


Section 186A


186A Amount of penalty—breaches of certain provisions of Part 6

or Part 3A

Infringement notice—bodies corporate

(1) The penalty to be specified in an infringement notice for an alleged

contravention of subsection 74(1), (1A), (1B), or (1C) or 75M(1) (a

Part 6 infringement notice provision) or subsection 51B(1) or

51F(1) (a Part 3A infringement notice provision) by a body

corporate must be a pecuniary penalty equal to:

(a) if the alleged contravention is of a kind specified in the

AML/CTF Rules under subsection (3)—the number of

penalty units specified in the AML/CTF Rules in relation to

that kind of contravention; or


Infringement notice—persons other than bodies corporate

(2) The penalty to be specified in an infringement notice for an alleged

contravention of a Part 6 infringement notice provision or a

Part 3A infringement notice provision by a person other than a

body corporate must be a pecuniary penalty equal to:

(a) if the alleged contravention is of a kind specified in the

AML/CTF Rules under subsection (3)—the number of

penalty units specified in the AML/CTF Rules in relation to

that kind of contravention; or


AML/CTF Rules may specify penalty units

(3) For the purposes of paragraphs (1)(a) and (2)(a), the AML/CTF

Rules may:

(a) set out one or more kinds of alleged contraventions of a

Part 6 infringement notice provision or a Part 3A

infringement notice provision; and

(b) for each kind of contravention set out in the AML/CTF

Rules—specify a particular number of penalty units that

applies.

(4) Without limiting the kinds of contraventions that may be specified

in the AML/CTF Rules made under paragraph (3)(a), the

contraventions may be described by reference to the following:


Enforcement Part 15

Infringement notices for certain contraventions Division 3

Section 187


(a) whether an alleged contravention is one of a number of

alleged contraventions of a Part 6 infringement notice

provision or a Part 3A infringement notice provision

specified in a particular infringement notice;

(b) whether a person alleged to have contravened one or more

Part 6 infringement notice provisions or Part 3A infringement

notice provisions has previously been given an infringement

notice in relation to an alleged contravention of a Part 6

infringement notice provision or a Part 3A infringement

notice provision.

(5) The number of penalty units specified in AML/CTF Rules made

under paragraph (3)(b) in relation to a particular kind of

contravention must not exceed:

(a) in the case of an alleged contravention by a body corporate—

120 penalty units; or

(b) in the case of an alleged contravention by a person other than

a body corporate—24 penalty units.

187 Withdrawal of an infringement notice

(1) This section applies if an infringement notice is given to a person.

(2) An authorised officer may, by written notice (the withdrawal

notice) given to the person, withdraw the infringement notice.

(3) To be effective, the withdrawal notice must be given to the person

within 28 days after the infringement notice was given.

Refund of penalty if infringement notice withdrawn

(4) If:

(a) the penalty specified in the infringement notice is paid; and

(b) the infringement notice is withdrawn after the penalty is paid;

the Commonwealth is liable to refund the penalty.

188 What happens if the penalty is paid


(a) an infringement notice relating to an alleged contravention of

an infringement notice provision is given to a person; and


Part 15 Enforcement


Section 189


(b) the penalty is paid in accordance with the infringement

notice; and

(c) the infringement notice is not withdrawn.

(2) Any liability of the person for the alleged contravention is

discharged.

(3) Criminal proceedings, or section 175 proceedings, may not be

brought against the person for the alleged contravention.

189 Effect of this Division on criminal and civil proceedings

This Division does not:

(a) require an infringement notice to be given in relation to an

alleged contravention of an infringement notice provision; or

(b) affect the liability of a person to have:

(i) criminal proceedings brought against the person for an

alleged contravention of subsection 53(1) or 59(3) or

74(2), (4), (6) or (8); or

(ii) section 175 proceedings brought against the person for

an alleged contravention of an infringement notice

provision;

if:

(iii) the person does not comply with an infringement notice

relating to the contravention; or

(iv) an infringement notice relating to the contravention is

not given to the person; or

(v) an infringement notice relating to the contravention is

given to the person and subsequently withdrawn; or

(c) limit a court’s discretion to determine the amount of a

penalty to be imposed on a person who:

(i) is found in criminal proceedings to have contravened

subsection 53(1) or 59(3) or 74(2), (4), (6) or (8); or

(ii) is found in section 175 proceedings to have contravened

an infringement notice provision.


Enforcement Part 15

Monitoring of compliance Division 4

Section 190


Division 4—Monitoring of compliance

190 Monitoring of compliance

(1) The AUSTRAC CEO is to monitor, and report to the Minister on,

compliance by reporting entities with their obligations under this

Act, the regulations and the AML/CTF Rules.

(2) If:

(a) the AUSTRAC CEO has reasonable grounds to believe that a

reporting entity has breached any of its obligations under this

Act, the regulations or the AML/CTF Rules; and

(b) the AUSTRAC CEO is satisfied that the breach is relevant to

the performance of the functions, or the exercise of the

powers, of an Australian government body; and

(c) the AUSTRAC CEO has given the Minister a report about

the breach;

the AUSTRAC CEO may give the body a copy of that report.

(2A) Subsection (1) does not require the AUSTRAC CEO to monitor,

and report individually upon, each reporting entity that is registered

under Part 6 of this Act, but the AUSTRAC CEO must monitor

and report generally upon those reporting entities.


lie against:

(a) the Commonwealth; or

(b) the AUSTRAC CEO; or

(c) a member of the staff of AUSTRAC;

in relation to any action taken under this section by way of:

(d) the giving of a report; or

(e) the giving of a copy of a report.

(4) Subsection (2) does not limit section 126.


Part 15 Enforcement

Division 5 Remedial directions

Section 191


Division 5—Remedial directions

191 Remedial directions

(1) This section applies if the AUSTRAC CEO is satisfied that a

reporting entity has contravened, or is contravening, a civil penalty

provision (other than subsection (4)).

(2) The AUSTRAC CEO may give the reporting entity a written

direction requiring the reporting entity to take specified action

directed towards ensuring that the reporting entity does not

contravene the civil penalty provision, or is unlikely to contravene

the civil penalty provision, in the future.

(3) The following are examples of the kinds of direction that may be

given to a reporting entity under subsection (2):

(a) a direction that the reporting entity implement effective

administrative systems for monitoring compliance with a

civil penalty provision;

(b) a direction that the reporting entity implement a system

designed to give the reporting entity’s officers, employees

and agents a reasonable knowledge and understanding of the

requirements of a civil penalty provision, in so far as those

requirements affect the officers, employees or agents

concerned.

(4) A reporting entity must not contravene a direction under

subsection (2).

Civil penalty


Remedial direction is not a legislative instrument

(6) A direction under subsection (2) is not a legislative instrument.

191A Review of decisions


for review of decisions of the AUSTRAC CEO under section 191.


Enforcement Part 15

Remedial directions Division 5

Section 191A


(2) In this section:

decision has the same meaning as in the Administrative Appeals

Tribunal Act 1975.


Part 15 Enforcement

Division 6 Injunctions

Section 192


Division 6—Injunctions

192 Injunctions

Restraining injunctions

(1) If a person has engaged, is engaging or is proposing to engage, in

any conduct in contravention of a civil penalty provision, the

Federal Court may, on the application of the AUSTRAC CEO,

grant an injunction:

(a) restraining the person from engaging in the conduct; and

(b) if, in the Court’s opinion, it is desirable to do so—requiring

the person to do something.

Performance injunctions

(2) If:

(a) a person has refused or failed, or is refusing or failing, or is

proposing to refuse or fail, to do an act or thing; and

(b) the refusal or failure was, is or would be a contravention of a

civil penalty provision;

the Federal Court may, on the application of the AUSTRAC CEO,

grant an injunction requiring the person to do that act or thing.

193 Interim injunctions

Grant of interim injunction

(1) If an application is made to the Federal Court for an injunction

under section 192, the Court may, before considering the

application, grant an interim injunction restraining a person from

engaging in conduct of a kind mentioned in that section.

No undertakings as to damages

(2) The Federal Court is not to require an applicant for an injunction

under section 192, as a condition of granting an interim injunction,

to give any undertakings as to damages.


Enforcement Part 15

Injunctions Division 6

Section 194


194 Discharge etc. of injunctions

The Federal Court may discharge or vary an injunction granted

under this Division.

195 Certain limits on granting injunctions not to apply

Restraining injunctions

(1) The power of the Federal Court under this Division to grant an

injunction restraining a person from engaging in conduct of a

particular kind may be exercised:

(a) if the Court is satisfied that the person has engaged in

conduct of that kind—whether or not it appears to the Court

that the person intends to engage again, or to continue to

engage, in conduct of that kind; or

(b) if it appears to the Court that, if an injunction is not granted,

it is likely that the person will engage in conduct of that

kind—whether or not the person has previously engaged in

conduct of that kind and whether or not there is an imminent

danger of substantial damage to any person if the person

engages in conduct of that kind.

Performance injunctions

(2) The power of the Federal Court to grant an injunction requiring a

person to do an act or thing may be exercised:

(a) if the Court is satisfied that the person has refused or failed to

do that act or thing—whether or not it appears to the Court

that the person intends to refuse or fail again, or to continue

to refuse or fail, to do that act or thing; or

(b) if it appears to the Court that, if an injunction is not granted,

it is likely that the person will refuse or fail to do that act or

thing—whether or not the person has previously refused or

failed to do that act or thing and whether or not there is an

imminent danger of substantial damage to any person if the

person refuses or fails to do that act or thing.


Part 15 Enforcement

Division 6 Injunctions

Section 196


196 Other powers of the Federal Court unaffected

The powers conferred on the Federal Court under this Division are

in addition to, and not instead of, any other powers of the Court,

whether conferred by this Act or otherwise.


Enforcement Part 15

Enforceable undertakings Division 7

Section 197


Division 7—Enforceable undertakings

197 Acceptance of undertakings

(1) The AUSTRAC CEO may accept any of the following

undertakings:

(a) a written undertaking given by a person that the person will,

in order to comply with this Act, the regulations or the

AML/CTF Rules, take specified action;

(b) a written undertaking given by a person that the person will,

in order to comply with this Act, the regulations or the

AML/CTF Rules, refrain from taking specified action;

(c) a written undertaking given by a person that the person will

take specified action directed towards ensuring that the

person does not contravene this Act, the regulations or the

AML/CTF Rules, or is unlikely to contravene this Act, the

regulations or the AML/CTF Rules, in the future.

(2) The undertaking must be expressed to be an undertaking under this

section.

(3) The person may withdraw or vary the undertaking at any time, but

only with the consent of the AUSTRAC CEO.

(4) The AUSTRAC CEO may, by written notice given to the person,

cancel the undertaking.

(5) The AUSTRAC CEO may publish a copy of the undertaking on

AUSTRAC’s website, but the AUSTRAC CEO must delete from

the copy information that the AUSTRAC CEO is satisfied:

(a) is commercial in confidence; or

(b) should not be released because it would be against the public

interest to do so; or

(c) consists of personal details of an individual.

(6) If:

(a) the AUSTRAC CEO publishes a copy of the undertaking on

AUSTRAC’s website; and

(b) the copy has information deleted from it;


Part 15 Enforcement

Division 7 Enforceable undertakings

Section 198


the copy must include a note stating that information has been

deleted.

198 Enforcement of undertakings

(1) If:

(a) a person has given an undertaking under section 197; and

(b) the undertaking has not been withdrawn or cancelled; and

(c) the AUSTRAC CEO considers that the person has breached

the undertaking;

the AUSTRAC CEO may apply to the Federal Court for an order

under subsection (2).

(2) If the Federal Court is satisfied that the person has breached the

undertaking, the Court may make any or all of the following

orders:

(a) an order directing the person to comply with the undertaking;

(b) an order directing the person to pay to the Commonwealth an

amount up to the amount of any financial benefit that the

person has obtained directly or indirectly and that is

reasonably attributable to the breach;

(c) any order that the Court considers appropriate directing the

person to compensate any other person who has suffered loss

or damage as a result of the breach;

(d) any other order that the Court considers appropriate.


Enforcement Part 15

Powers of questioning, search and arrest in relation to cross-border movements of

physical currency and bearer negotiable instruments Division 8

Section 199


Division 8—Powers of questioning, search and arrest in

relation to cross-border movements of physical

currency and bearer negotiable instruments

199 Questioning and search powers in relation to physical currency

Person leaving Australia

(1) A person who is:

(a) about to leave Australia; or

(b) in an embarkation area for the purpose of leaving Australia;

must, if required to do so by a police officer or a customs officer:

(c) declare whether or not the person has with him or her any

Australian currency or foreign currency; and

(d) declare the total amount of any Australian currency or

foreign currency that the person has with him or her; and

(e) declare whether or not, to the best of the person’s knowledge

and belief, a report under section 53 has been given in respect

of any Australian currency or foreign currency that the

person has with him or her; and

(f) produce to the officer any Australian currency or foreign

currency that the person has with him or her.

Person arriving in Australia

(2) A person who arrives in Australia must, if required to do so by a

police officer or a customs officer:

(a) declare whether or not the person has with him or her any

Australian currency or foreign currency; and

(b) declare the total amount of any Australian currency or

foreign currency that the person has with him or her; and

(c) declare whether or not, to the best of the person’s knowledge

and belief, a report under section 53 has been given in respect

of any Australian currency or foreign currency that the

person has with him or her; and

(d) produce to the officer any Australian currency or foreign

currency that the person has with him or her.


Part 15 Enforcement

Division 8 Powers of questioning, search and arrest in relation to cross-border

movements of physical currency and bearer negotiable instruments

Section 199


Powers of examination and search

(3) A police officer or a customs officer may, with such assistance as

is reasonable and necessary, examine an article which a person has

with him or her if the person:

(a) is about to leave Australia or has arrived in Australia; or

(b) is about to board or leave, or has boarded or left, any ship or

aircraft;

for the purpose of finding out whether the person has with him or

her any physical currency in respect of which a report under

section 53 is required.

(4) Either:

(a) a police officer; or

(b) a customs officer in respect of whom a declaration under

section 219ZA of the Customs Act 1901 is in force;

may, with such assistance as is reasonable and necessary, search a

person for the purpose of finding out whether the person has with

him or her any physical currency in respect of which a report under

section 53 is required, so long as:

(c) any of the following subparagraphs applies:

(i) the person is about to leave Australia;

(ii) the person has arrived in Australia;

(iii) the person is about to board or leave a ship or aircraft;

(iv) the person has boarded or left a ship or aircraft; and

(d) the officer has reasonable grounds to suspect that there is on

the person, or in clothing being worn by the person, physical

currency in respect of which a report under section 53 is

required.

(5) If a police officer or a customs officer has reasonable grounds to

suspect that physical currency found in the course of an

examination or search under subsection (3) or (4) may afford

evidence as to the commission of an offence against section 53, the

officer may seize the physical currency.

(6) A person must not be searched under subsection (4) except by a

person of the same sex.


Enforcement Part 15



Section 199


Boarding of ships and aircraft

(7) A police officer or a customs officer, and any person assisting a

police officer or customs officer, may board a ship or aircraft for

the purpose of exercising the powers conferred by subsection (1),

(2), (3) or (4).


is reasonable and necessary:

(a) board a ship or aircraft; and

(b) examine or search the ship or aircraft, and any goods found

on the ship or aircraft;

for the purpose of ascertaining whether there is on board the ship

or aircraft any physical currency in respect of which a report under

section 53 is required.

Entry to eligible places


is reasonable and necessary:

(a) go onto or enter any eligible place; and

(b) examine the place, and any goods found at or in it;

for the purpose of finding out whether there is at or in the place, or

in the goods, any physical currency in respect of which a report

under section 53 is required.

Seizure


suspect that physical currency found in the course of an

examination or search under subsection (8) or (9) may afford

evidence as to the commission of an offence against section 53, the

officer may seize the physical currency.

Offence


(a) the person is subject to a requirement under subsection (1) or

(2); and




Part 15 Enforcement



Section 200



year or 60 penalty units, or both.

200 Questioning and search powers in relation to bearer negotiable

instruments

Person leaving Australia

(1) A person who is:

(a) about to leave Australia; or

(b) in an embarkation area for the purpose of leaving Australia;

must, if required to do so by a police officer or a customs officer:

(c) declare whether or not the person has with him or her any

bearer negotiable instruments; and

(d) declare the amount payable under each bearer negotiable

instrument that the person has with him or her; and

(e) produce to the officer each bearer negotiable instrument that

the person has with him or her.

Person arriving in Australia

(2) A person who arrives in Australia must, if required to do so by a

police officer or a customs officer:

(a) declare whether or not the person has with him or her any

bearer negotiable instruments; and

(b) declare the amount payable under each bearer negotiable

instrument that the person has with him or her; and

(c) produce to the officer each bearer negotiable instrument that

the person has with him or her.

Officer may copy bearer negotiable instruments

(3) If a person produces a bearer negotiable instrument to a police

officer or a customs officer under subsection (1) or (2), the officer

may make a copy of the bearer negotiable instrument. Once copied,

the officer must return the bearer negotiable instrument to the

person.


Enforcement Part 15



Section 200


Officer may conduct searches etc.

(4) If:

(a) a police officer or a customs officer has asked a person to

make a declaration under subsection (1) or (2); and

(b) the officer has reasonable grounds to suspect that the person

has made a declaration that is false or misleading (a false

declaration);

the officer may, with such assistance as is reasonable and

necessary, examine an article which the person has with him or her

if any of the following paragraphs applies:

(c) the person is about to leave Australia;

(d) the person has arrived in Australia;

(e) the person is about to board or leave a ship or aircraft;

(f) the person has boarded or left a ship or aircraft;


her any bearer negotiable instruments in respect of which a false

declaration has been made.

(5) If:


make a declaration under subsection (1) or (2); and

(b) the person refuses or fails to make the declaration;









her any bearer negotiable instruments.

(6) If:


produce a bearer negotiable instrument under subsection (1)

or (2); and

(b) the person refuses or fails to produce the bearer negotiable

instrument;


Part 15 Enforcement



Section 200











(7) If:

(a) either:

(i) a police officer; or

(ii) a customs officer in respect of whom a declaration

under section 219ZA of the Customs Act 1901 is in

force;

has asked a person to make a declaration under subsection (1)

or (2); and

(b) the officer has reasonable grounds to suspect that the person

has made a declaration that is false or misleading (a false

declaration);


necessary, search the person if:







the person, or in clothing being worn by the person, a bearer

negotiable instrument in respect of which a false declaration

has been made;


her any bearer negotiable instruments in respect of which a false

declaration has been made.

(8) If:

(a) either:



Enforcement Part 15



Section 200




force;

has asked a person to make a declaration under subsection (1)

or (2); and

(b) the person refuses or fails to make the declaration;










negotiable instrument;



(9) If:

(a) either:




force;

has asked a person to produce a bearer negotiable instrument

under subsection (1) or (2); and

(b) the person refuses or fails to produce the bearer negotiable

instrument;










negotiable instrument;


Part 15 Enforcement



Section 200




(10) A person must not be searched under subsection (7), (8) or (9)

except by a person of the same sex.

Officer may conduct searches on board a ship or aircraft

(11) A police officer or a customs officer, and any person assisting the

officer, may:

(a) board any ship or aircraft; or

(b) go onto or enter any eligible place;

for the purpose of exercising the powers conferred by

subsection (1), (2), (4), (5), (6), (7), (8) or (9).

Officer may seize bearer negotiable instruments

(12) If:

(a) in the course of an examination or search under

subsection (4), (5), (6), (7), (8) or (9), a police officer or a

customs officer finds a bearer negotiable instrument; and

(b) the person:

(i) has made a declaration under subsection (1) or (2) that

is false or misleading; or

(ii) has refused or failed to make a declaration under

subsection (1) or (2); or

(iii) has refused or failed to produce a bearer negotiable

instrument under subsection (1) or (2);

the officer may seize the instrument.

(13) If:

(a) a person produces a bearer negotiable instrument to a police

officer or a customs officer under subsection (1) or (2); and

(b) the person has made a declaration under subsection (1) or (2)

that is false or misleading;

the officer may seize the instrument.


Enforcement Part 15



Section 201


Offence


(a) the person is subject to a requirement under subsection (1) or

(2); and




year or 60 penalty units, or both.

201 Arrest without warrant


believe that a person has committed an offence against subsection

53(1) or 59(3), the officer may arrest the person without warrant.


believe that a person has assaulted any police officer or customs

officer in the execution of that officer’s duties under this Division,

the first-mentioned officer may arrest the person without warrant.


(a) the person engages in conduct; and

(b) the conduct resists, obstructs or prevents the arrest of a

person under this section.


(4) Subsection (3) does not apply if the person has a reasonable

excuse.



Part 15 Enforcement

Division 9 Notices to reporting entities

Section 202


Division 9—Notices to reporting entities

202 Notices to reporting entities

(1) Each of the following persons is authorised to give notices under

this section:

(a) the AUSTRAC CEO;

(b) an authorised officer;

(c) the Commissioner of the Australian Federal Police;

(d) a Deputy Commissioner of the Australian Federal Police;

(e) a senior executive AFP employee (within the meaning of the

Australian Federal Police Act 1979) who is:

(i) a member of the Australian Federal Police; and

(ii) authorised in writing by the Commissioner of the

Australian Federal Police for the purposes of this

section;

(f) the Chief Executive Officer of the Australian Crime

Commission;

(g) an examiner of the Australian Crime Commission;

(h) an approved examiner (within the meaning of the Proceeds

of Crime Act 2002).

(2) If a person authorised by subsection (1) believes on reasonable

grounds that another person is a reporting entity, the authorised

person may give a written notice to the other person requiring the

other person to give the authorised person any information, or

produce to the authorised person any documents, relevant to any or

all of the following:

(a) determining whether the other person provides designated

services at or through a permanent establishment of the other

person in Australia;

(b) ascertaining details relating to any permanent establishment

in Australia at or through which the other person provides

designated services;

(c) ascertaining details relating to designated services provided

by the other person at or through a permanent establishment

of the other person in Australia.


Enforcement Part 15

Notices to reporting entities Division 9

Section 203


(3) A person must not give a notice under subsection (2) unless the

person reasonably believes that giving the notice is required:

(a) to determine whether to take any action under this Act; or

(b) in relation to proceedings under this Act.

(4) A person must comply with a notice given to the person under

subsection (2).

203 Contents of notices to reporting entities

A notice given by a person to another person under subsection

202(2) must:

(a) state that the first-mentioned person believes that the notice

is required:

(i) to determine whether to take any action under this Act;

or

(ii) in relation to proceedings under this Act;

(as the case requires); and

(b) specify the name of the other person; and

(c) specify the kind of information or documents required to be

given or produced; and

(d) specify the form and manner in which that information or

those documents are to be given or produced; and

(e) state that the information or documents must be given or

produced within 14 days after the notice is given; and

(f) set out the effect of section 204 (breaching a requirement

under a notice); and

(g) if the notice specifies that information about the notice must

not be disclosed—set out the effect of section 207 (disclosing

existence or nature of a notice).

204 Breaching a notice requirement


(a) the person is subject to a requirement under subsection

202(4); and





Part 15 Enforcement

Division 9 Notices to reporting entities

Section 205



(1) A person is not excused from giving information or producing a

document under section 202 on the ground that the information or

the production of the document might tend to incriminate the

person or expose the person to a penalty.

(2) However:

(a) the information given or the document produced; or

(b) giving the information or producing the document;


(c) in civil proceedings other than:

(i) proceedings under this Act; or

(ii) proceedings under the Proceeds of Crime Act 2002 that

relate to this Act; or


(i) proceedings for an offence against this Act; or

(ii) proceedings for an offence against the Criminal Code

that relates to this Act.


If a person, or an officer, employee or agent of a person, provides

information under a notice under subsection 202(2), the person,

officer, employee or agent is taken, for the purposes of



207 Disclosing existence or nature of notice


(a) the person is given a notice under subsection 202(2); and

(b) the notice specifies that information about the notice must

not be disclosed; and

(c) the person discloses the existence or nature of the notice.



reporting entity if the disclosure is to a legal practitioner (however

described) for the purpose of obtaining legal advice.


Enforcement Part 15

Notices to reporting entities Division 9

Section 207





(a) the reporting entity is a member of a designated business

group; and

(b) the disclosure is made to another member of the designated

business group.



Part 16 Administration


Section 208


Part 16—Administration




• AUSTRAC is continued in existence.

• There is to be a Chief Executive Officer of AUSTRAC.

• The AUSTRAC CEO’s functions include the compilation and

analysis of eligible collected information.

• The AUSTRAC CEO may make AML/CTF Rules.


Administration Part 16

Establishment and function of AUSTRAC Division 2

Section 209


Division 2—Establishment and function of AUSTRAC

209 Establishment of AUSTRAC

(1) The Australian Transaction Reports and Analysis Centre

established under the Financial Transaction Reports Act 1988

continues in existence by force of this subsection, under and

subject to the provisions of this Act.

(2) The Australian Transaction Reports and Analysis Centre may also

be known as AUSTRAC.

(3) AUSTRAC consists of:

(a) the AUSTRAC CEO; and

(b) the staff of AUSTRAC.

Note: AUSTRAC does not have a legal identity separate from the Commonwealth.

210 Function of AUSTRAC

The function of AUSTRAC is to assist the AUSTRAC CEO in the

performance of the AUSTRAC CEO’s functions.



Division 3 Chief Executive Officer of AUSTRAC

Section 211


Division 3—Chief Executive Officer of AUSTRAC

Subdivision A—Office and functions of the AUSTRAC CEO

211 AUSTRAC CEO

(1) There is to be a Chief Executive Officer of AUSTRAC.

(2) The Chief Executive Officer of AUSTRAC may also be known as

the AUSTRAC CEO.

(3) The office of Chief Executive Officer of AUSTRAC is, for all

purposes, a continuation under that name of the office of Director

of AUSTRAC established under the Financial Transaction Reports

Act 1988.

(4) To avoid doubt, a reference in a law of the Commonwealth to the

AUSTRAC CEO must, in relation to matters that occurred before

the commencement of this section, be construed as a reference to

the Director of AUSTRAC.

Note: See also section 25B of the Acts Interpretation Act 1901.

212 Functions of the AUSTRAC CEO

(1) The functions of the AUSTRAC CEO are:

(a) to retain, compile, analyse and disseminate eligible collected

information; and

(b) to provide advice and assistance, in relation to AUSTRAC

information, to the persons and agencies who are entitled or

authorised to access AUSTRAC information under Part 11;

and

(c) to advise and assist reporting entities in relation to their

obligations under this Act, the regulations and the AML/CTF

Rules; and

(d) to advise and assist the representatives of reporting entities in

relation to compliance by reporting entities with this Act, the

regulations and the AML/CTF Rules; and

(e) to promote compliance with this Act, the regulations and the

AML/CTF Rules; and



Chief Executive Officer of AUSTRAC Division 3

Section 212


(f) such other functions as are conferred on the AUSTRAC CEO

by or under:

(i) this Act; or

(ii) the regulations; or

(iii) any other law of the Commonwealth.

Note: The AUSTRAC CEO’s other functions include:

(a) monitoring compliance with this Act, the regulations and the AML/CTF Rules (see section 190); and

(b) making AML/CTF Rules (see section 229).

(2) In performing the AUSTRAC CEO’s functions, the AUSTRAC

CEO must:

(a) consult with the following:

(i) reporting entities or the representatives of reporting

entities;

(ii) the Commissioner of the Australian Federal Police;

(iii) the Chief Executive Officer of the Australian Crime

Commission;

(iv) the Commissioner of Taxation;

(v) the Chief Executive Officer of Customs;

(vi) the Information Commissioner in relation to matters that

relate to the privacy functions (within the meaning of

the Australian Information Commissioner Act 2010);

and

(b) take into account any comments made in the course of those

consultations.

(3) In performing the AUSTRAC CEO’s functions under this Act, the

AUSTRAC CEO must have regard to the following:

(a) the integrity of the financial system;

(b) crime reduction;

(c) the desirability of ensuring that regulatory considerations are

addressed in a way that does not impose unnecessary

financial and administrative burdens on reporting entities;

(d) the desirability of adopting a risk-based approach;

(e) competitive neutrality;

(f) competition;

(g) economic efficiency;

(h) privacy;




Section 213


(i) such other matters (if any) as the AUSTRAC CEO considers

relevant.

(4) In performing the AUSTRAC CEO’s functions under this Act, the

AUSTRAC CEO must have regard to:

(a) any relevant FATF Recommendations; and

(b) any relevant Conventions mentioned in subsection 3(3); and

(c) any relevant Resolutions mentioned in subsection 3(3).

(5) Any failure to comply with the requirements of subsection (2), (3)

or (4) in relation to the performance of a function of the

AUSTRAC CEO does not affect the validity of the performance of

the function.

(6) Subsection (5) does not apply in determining the constitutional

validity of the performance of the AUSTRAC CEO’s functions.

213 Policy principles

(1) The Minister may give written policy principles to the AUSTRAC

CEO about the performance of the AUSTRAC CEO’s functions.

(2) The Minister must cause a copy of the policy principles to be

tabled in each House of the Parliament within 15 sitting days of

that House after the day on which they were given to the

AUSTRAC CEO.

(3) The AUSTRAC CEO must comply with the policy principles (if

any) when performing the AUSTRAC CEO’s functions.

(4) Policy principles are not legislative instruments.

Subdivision B—Appointment of the AUSTRAC CEO etc.

214 Appointment of the AUSTRAC CEO etc.

(1) The AUSTRAC CEO is to be appointed by the Minister by written

instrument.

(2) The AUSTRAC CEO is to be appointed on a full-time basis.

(3) The AUSTRAC CEO holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.




Section 215


Note: For re-appointment, see subsection 33(4A) of the Acts Interpretation Act 1901.

215 Remuneration and allowances of the AUSTRAC CEO

(1) The AUSTRAC CEO is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Tribunal is in operation, the AUSTRAC

CEO is to be paid the remuneration that is determined by the

Minister.

(2) The AUSTRAC CEO is to be paid the allowances that are

prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act

1973.

216 Leave of absence of the AUSTRAC CEO

(1) The AUSTRAC CEO has the recreation leave entitlements that are

determined by the Remuneration Tribunal.

(2) The Minister may grant the AUSTRAC CEO leave of absence,

other than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines.

217 Resignation of the AUSTRAC CEO

The AUSTRAC CEO may resign his or her appointment by giving

the Minister a written resignation.

218 Notification of possible conflict of interest by the AUSTRAC

CEO

Immediately after the AUSTRAC CEO:

(a) acquires any interest, pecuniary or otherwise, that could

conflict with the proper performance of his or her duties; or

(b) becomes aware that any interest, pecuniary or otherwise, that:

(i) he or she has; or

(ii) he or she is likely to acquire;

could conflict with the proper performance of his or her

duties;




Section 219


the AUSTRAC CEO must notify the Minister, in writing, of that

interest.

219 Termination of the AUSTRAC CEO’s appointment

Termination

(1) The Minister may terminate the appointment of the AUSTRAC

CEO for misbehaviour or physical or mental incapacity.

(2) The Minister may terminate the appointment of the AUSTRAC

CEO if:

(a) the AUSTRAC CEO:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the

benefit of his or her creditors; or

(b) the AUSTRAC CEO is absent from duty, except on leave of

absence, for 14 consecutive days or for 28 days in any 12

months; or

(c) the AUSTRAC CEO engages, except with the Minister’s

approval, in paid employment outside the duties of his or her

office; or

(d) the AUSTRAC CEO fails, without reasonable excuse, to

comply with section 218; or

(e) the Minister is satisfied that the performance of the

AUSTRAC CEO has been unsatisfactory for a significant

period.

Conflict of interest

(3) If the Minister becomes aware, whether because of a notification

under section 218 or otherwise, that the AUSTRAC CEO has an

interest that could conflict with the proper performance of the

AUSTRAC CEO’s duties, the Minister must make a written

determination either that the interest does, or that it does not, pose

a significant risk of a conflict of interest.




Section 220


(4) If the Minister determines that the interest poses a significant risk,

the Minister must require the AUSTRAC CEO to dispose of that

interest within a period specified by the Minister.

(5) If:

(a) the Minister requires the AUSTRAC CEO to dispose of an

interest; and

(b) the AUSTRAC CEO refuses or fails to comply with that

requirement;

the Minister must terminate the appointment of the AUSTRAC

CEO.

220 Other terms and conditions

The AUSTRAC CEO holds office on the terms and conditions (if

any) in relation to matters not covered by this Act that are

determined by the Minister.

221 Acting appointments

(1) The Minister may appoint a person to act as the AUSTRAC CEO:

(a) during a vacancy in the office of AUSTRAC CEO (whether

or not an appointment has previously been made to the

office); or

(b) during any period, or during all periods, when the

AUSTRAC CEO is absent from duty or from Australia, or is,

for any reason, unable to perform the duties of the office.

(2) Anything done by or in relation to a person purporting to act under

an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the

appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion to act had not arisen or had ceased.

Note: See section 33A of the Acts Interpretation Act 1901.

222 Delegation by the AUSTRAC CEO

(1) The AUSTRAC CEO may, by writing, delegate any or all of his or

her functions or powers to a member of the staff of AUSTRAC.




Section 223



(2) In performing functions and exercising powers under the

delegation, the delegate must comply with any directions of the

AUSTRAC CEO.

Note: See sections 34AA to 34A of the Acts Interpretation Act 1901.

223 Secretary may require the AUSTRAC CEO to give information

Information

(1) The Secretary may, by written notice given to the AUSTRAC

CEO, require the AUSTRAC CEO to:

(a) prepare a document setting out specified information relating

to the performance of the AUSTRAC CEO’s functions; and

(b) give a copy of the document to the Secretary within the

period specified in the notice.

Compliance with requirement

(2) The AUSTRAC CEO must comply with a requirement under

subsection (1).



Staff of AUSTRAC etc. Division 4

Section 224


Division 4—Staff of AUSTRAC etc.

224 Staff of AUSTRAC

(1) The staff of AUSTRAC are persons engaged under the Public

Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the AUSTRAC CEO and the staff of AUSTRAC together

constitute a Statutory Agency; and

(b) the AUSTRAC CEO is the Head of that Statutory Agency.

225 Consultants and persons seconded to AUSTRAC

(1) The AUSTRAC CEO may, on behalf of the Commonwealth,

engage consultants to perform services for AUSTRAC in

connection with the performance of any of the AUSTRAC CEO’s

functions.

(2) The terms and conditions of engagement of persons engaged under

subsection (1) are such as the AUSTRAC CEO determines in

writing.

(3) The AUSTRAC CEO may also be assisted:

(a) by officers and employees of Agencies (within the meaning

of the Public Service Act 1999); or

(b) by officers and employees of authorities of the

Commonwealth; or

(c) by members of the Australian Federal Police; or

(d) by officers and employees of a State or Territory; or

(e) by officers and employees of authorities of a State or

Territory; or

(f) by members of the police force or police service of a State or

Territory;

whose services are made available to the AUSTRAC CEO in

connection with the performance of any of the AUSTRAC CEO’s

functions.



Division 5 Reports and information

Section 226


Division 5—Reports and information

226 Annual report

(1) The AUSTRAC CEO must, as soon as practicable after 30 June in

each year, prepare and give to the Minister a report of the

AUSTRAC CEO’s operations during the year ending on that

30 June.

Note: See also section 34C of the Acts Interpretation Act 1901.

(2) The Minister must cause a copy of each report under this section to

be tabled in each House of the Parliament within 15 sitting days of

that House after receiving the report.

227 Minister may require the AUSTRAC CEO to prepare reports or

give information

Reports

(1) The Minister may, by written notice given to the AUSTRAC CEO,

require the AUSTRAC CEO:

(a) to prepare a report about one or more specified matters

relating to the performance of the AUSTRAC CEO’s

functions; and

(b) give a copy of the report to the Minister within the period

specified in the notice.

Information

(2) The Minister may, by written notice given to the AUSTRAC CEO,

require the AUSTRAC CEO to:

(a) prepare a document setting out specified information relating

to the performance of the AUSTRAC CEO’s functions; and

(b) give a copy of the document to the Minister within the period

specified in the notice.

Compliance

(3) The AUSTRAC CEO must comply with a requirement under

subsection (1) or (2).



Directions by Minister Division 6

Section 228


Division 6—Directions by Minister

228 Directions by Minister

(1) The Minister may give the AUSTRAC CEO a written direction

about policies the AUSTRAC CEO should pursue, or priorities the

AUSTRAC CEO should follow, in performing any of the

AUSTRAC CEO’s functions.

(2) The Minister must not give a direction under subsection (1) about a

particular case.

(3) The AUSTRAC CEO must comply with a direction under

subsection (1).

(4) A direction under subsection (1) is not a legislative instrument.

(5) The Minister must cause a copy of each direction under

subsection (1) to be tabled in each House of the Parliament within

15 sitting days of that House after giving the direction.



Division 7 AML/CTF Rules

Section 229


Division 7—AML/CTF Rules

229 AML/CTF Rules

(1) The AUSTRAC CEO may, by writing, make rules (the AML/CTF

Rules) prescribing matters required or permitted by any other

provision of this Act to be prescribed by the AML/CTF Rules.

Note 1: AML/CTF Rules is short for Anti-Money Laundering/Counter-Terrorism Financing Rules.

Note 2: For amendment and repeal, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) AML/CTF Rules are legislative instruments.

Ministerial directions with respect to the making of AML/CTF

Rules

(3) The Minister may give the AUSTRAC CEO a written direction

about the exercise of the powers conferred on the AUSTRAC CEO

by subsection (1).

(4) The AUSTRAC CEO must comply with a direction under

subsection (3).


Vicarious liability Part 17

Section 230


Part 17—Vicarious liability



• This Part deals with the proof of matters that involve

employees, agents etc.

231 Criminal liability of corporations

Part 2.5 of the Criminal Code has effect, in relation to an offence

against this Act, as if each reference in that Part to a body

corporate were a reference to a corporation.

232 Civil liability of corporations

State of mind

(1) If, in a civil proceeding under, or arising out of, this Act in respect

of conduct engaged in by a corporation, it is necessary to establish

the state of mind of the corporation, it is sufficient to show that:

(a) a director, employee or agent of the corporation engaged in

that conduct; and

(b) the director, employee or agent was, in engaging in that

conduct, acting within the scope of his or her actual or

apparent authority; and

(c) the director, employee or agent had that state of mind.

Conduct

(2) If:

(a) conduct is engaged in on behalf of a corporation by a

director, employee or agent of the corporation; and

(b) the conduct is within the scope of his or her actual or

apparent authority;

the conduct is taken, for the purposes of a civil proceeding under,

or arising out of, this Act, to have been engaged in by the


Part 17 Vicarious liability

Section 233


corporation unless the corporation proves that it took reasonable

precautions and exercised due diligence to avoid the conduct.

233 Liability of persons other than corporations

State of mind

(1) If, in criminal or civil proceedings under, or arising out of, this Act

in respect of conduct engaged in by a person other than a

corporation, it is necessary to establish the state of mind of the

person, it is sufficient to show that:

(a) the conduct was engaged in by an employee or agent of the

person within the scope of his or her actual or apparent

authority; and

(b) the employee or agent had that state of mind.

Conduct

(2) If:

(a) conduct is engaged in on behalf of a person other than a

corporation by an employee or agent of the person; and

(b) the conduct is within the employee’s or agent’s actual or

apparent authority;

the conduct is taken, for the purposes of criminal or civil

proceedings under, or arising out of, this Act, to have been engaged

in by the person unless the person proves that the person took

reasonable precautions and exercised due diligence to avoid the

conduct.

Limitation on imprisonment

(3) Despite any other provision of this Act, if:

(a) a person is convicted of an offence; and

(b) the person would not have been convicted of the offence if

subsections (1) and (2) had not been in force;

the person is not liable to be punished by imprisonment for that

offence.


Miscellaneous Part 18

Section 234


Part 18—Miscellaneous



• Proceedings do not lie against a person in relation to anything

done, or omitted to be done, in compliance, or in purported

compliance, with a requirement under this Act, the regulations

or the AML/CTF Rules.

• In proceedings for a contravention of this Act or the

regulations, it is a defence if the defendant proves that the

defendant took reasonable precautions, and exercised due

diligence, to avoid the contravention.

• Partnerships, trusts and unincorporated associations are to be

treated as persons for the purposes of this Act.

• This Act is not intended to affect the concurrent operation of

State and Territory laws.

• This Act does not affect the law relating to legal professional

privilege.

• A contravention of this Act does not affect the validity of any

transaction.

• Provision is made in relation to the making of reports to the

AUSTRAC CEO etc.

• Provision is made in relation to the performance of

non-judicial functions by magistrates.

• This Act does not apply to a designated service specified in

the AML/CTF Rules.

• The AUSTRAC CEO may exempt a person from this Act, or

modify the application of this Act to a person.


Part 18 Miscellaneous

Section 235


• There is to be a review of the operation of this Act.

• The Governor-General may make regulations for the purposes

of this Act.

235 Protection from liability


lie against:

(a) a person (the first person); or

(b) an officer, employee or agent of the first person acting in the

course of his or her office, employment or agency;


the first person, officer, employee or agent:

(c) in carrying out an applicable customer identification

procedure under this Act; or

(d) in fulfilment, or purported fulfilment, of a requirement under

this Act not to commence to provide a designated service, or

not to continue to provide a designated service; or

(e) in compliance, or in purported compliance, with any other

requirement under:

(i) this Act; or

(ii) the regulations; or

(iii) the AML/CTF Rules.

(2) Subsection (1) does not apply to the following proceedings:

(a) criminal proceedings for an offence against this Act or the

regulations;

(b) section 175 proceedings for a contravention of a civil penalty

provision;

(c) proceedings under the Proceeds of Crime Act 2002 that relate

to this Act.

236 Defence of taking reasonable precautions, and exercising due

diligence, to avoid a contravention

Scope

(1) This section applies to the following proceedings:



Section 237


(a) criminal proceedings for an offence against the regulations;

(b) section 175 proceedings for a contravention of a civil penalty

provision;

(c) proceedings under the Proceeds of Crime Act 2002 that relate

to this Act.

Defence

(2) In the proceedings, it is a defence if the defendant proves that the

defendant took reasonable precautions, and exercised due

diligence, to avoid the contravention in respect of which the

proceedings were instituted.

Note: In criminal proceedings, a defendant bears a legal burden in relation to the matters in subsection (2)—see section 13.4 of the Criminal Code.

237 Treatment of partnerships

(1) This Act applies to a partnership as if it were a person, but with the

changes set out in this section.

(2) An obligation that would otherwise be imposed on the partnership

by this Act is imposed on each partner instead, but may be

discharged by any of the partners.

(3) An offence against this Act that would otherwise be committed by

the partnership is taken to have been committed by each partner.

(4) A partner does not commit an offence because of subsection (3) if

the partner:

(a) does not know of the circumstances that constitute the

contravention of the provision concerned; or

(b) knows of those circumstances but takes all reasonable steps

to correct the contravention as soon as possible after the

partner becomes aware of those circumstances.

Note: A defendant bears an evidential burden in relation to the matters in subsection (4)—see subsection 13.3(3) of the Criminal Code.

(5) This section applies to a breach of a civil penalty provision in a

corresponding way to the way in which it applies to an offence.



Section 238


238 Treatment of unincorporated associations

(1) This Act applies to an unincorporated association as if it were a

person, but with the changes set out in this section.

(2) An obligation that would otherwise be imposed on the association

by this Act is imposed on each member of the association’s

committee of management instead, but may be discharged by any

of the members.


the association is taken to have been committed by each member of

the association’s committee of management.

(4) A member of the association’s committee of management does not

commit an offence because of subsection (3) if the member:





member becomes aware of those circumstances.




239 Treatment of trusts with multiple trustees

(1) If a trust has 2 or more trustees, this Act applies to the trust as if it

were a person, but with the changes set out in this section.

Note: A trust is a person for the purposes of this Act (see the definition of person in section 5).

(2) An obligation that would otherwise be imposed on the trust by this

Act is imposed on each trustee instead, but may be discharged by

any of the trustees.


the trust is taken to have been committed by each trustee.



Section 240


(4) A trustee does not commit an offence because of subsection (3) if

the trustee:





trustee becomes aware of those circumstances.




240 Concurrent operation of State and Territory laws

This Act is not intended to exclude or limit the operation of a law

of a State or Territory that is capable of operating concurrently

with this Act.

241 Act not to limit other powers

(1) This Act does not limit any power that a person has, under any

other law, to obtain information.

(2) This Act does not limit any power that a customs officer or police

officer has under any other law.

242 Law relating to legal professional privilege not affected

This Act does not affect the law relating to legal professional

privilege.

243 Validity of transactions

A contravention of this Act, the regulations or the AML/CTF Rules

does not affect the validity of any transaction.



Section 244


244 Reports to the AUSTRAC CEO etc.

(1) A report to the AUSTRAC CEO by a person under this Act, or a

report to a customs officer or a police officer by a person under

section 53, 55 or 59, must be:

(a) signed by the person; or

(b) otherwise authenticated by the person in an approved way.

(2) A report to the AUSTRAC CEO by a person under this Act must

be given to the AUSTRAC CEO:

(a) in the manner set out in section 28A of the Acts

Interpretation Act 1901; or

(b) in such other manner and form as is approved in relation to

the person or to a class of persons that includes the person.

(3) This section does not affect the operation of the Electronic

Transactions Act 1999.

245 Arrangements with Governors of States etc.

States

(1) The Governor-General may make arrangements with the Governor

of a State with respect to the administration of this Act, including

arrangements for the performance of the functions of a magistrate

under this Act by a magistrate of that State.

(2) The Governor-General may arrange with the Governor of a State

with whom an arrangement is in force under subsection (1) for the

variation or revocation of the arrangement.

Australian Capital Territory

(3) The Governor-General may make arrangements with the Chief

Minister of the Australian Capital Territory with respect to the

administration of this Act, including arrangements for the

performance of the functions of a magistrate under this Act by a

magistrate of the Australian Capital Territory.

(4) The Governor-General may arrange with the Chief Minister of the

Australian Capital Territory for the variation or revocation of an

arrangement in force under subsection (3).



Section 246


Northern Territory

(5) The Governor-General may make arrangements with the

Administrator of the Northern Territory with respect to the

administration of this Act, including arrangements for the

performance of the functions of a magistrate under this Act by a

magistrate of the Northern Territory.

(6) The Governor-General may arrange with the Administrator of the

Northern Territory for the variation or revocation of an

arrangement in force under subsection (5).

Norfolk Island

(7) The Governor-General may make arrangements with the

Administrator of Norfolk Island with respect to the administration

of this Act, including arrangements for the performance of the

functions of a magistrate under this Act by a magistrate of Norfolk

Island.

(8) The Governor-General may arrange with the Administrator of

Norfolk Island for the variation or revocation of an arrangement in

force under subsection (7).

(9) A copy of each instrument by which an arrangement under this

section is made, varied or revoked is to be published in the Gazette.

Legislative Instruments Act

(10) An instrument by which an arrangement under this section is made,

varied or revoked is not a legislative instrument.

246 This Act does not limit other information-gathering powers

This Act does not limit:

(a) any power conferred on the Commissioner of Taxation, by

any other law, to obtain information; or

(b) any power conferred on any other person or body, by any

other law, to obtain information.

247 General exemptions

(1) This Act does not apply to a designated service that is of a kind




Section 248



Act does not apply to a designated service that is of a kind


(3) This Act does not apply to a designated service that is provided in



Act does not apply to a designated service that is provided in


248 Exemptions and modifications by the AUSTRAC CEO

(1) The AUSTRAC CEO may, by written instrument:

(a) exempt a specified person from one or more specified

provisions of this Act; or

(b) declare that this Act applies in relation to a specified person

as if one or more specified provisions of this Act were

modified as specified in the declaration.

(2) An exemption may apply:

(a) unconditionally; or

(b) subject to specified conditions.

(3) A person to whom a condition specified in an exemption applies

must comply with the condition.


(5) A copy of an exemption or declaration must be made available on

AUSTRAC’s website.

(6) If conduct engaged in by a person would not have constituted:

(a) an offence; or

(b) a contravention of a civil penalty provision:

if a particular declaration under paragraph (1)(b) had not been

made, that conduct does not constitute an offence or a

contravention of a civil penalty provision unless, before the

conduct occurred:

(c) a copy of the declaration was made available on

AUSTRAC’s website; or

(d) the AUSTRAC CEO gave the person a copy of the

declaration.



Section 249


In a prosecution for an offence to which this subsection applies, the

prosecution must prove that paragraph (c) or (d) was complied with

before the conduct occurred.

(7) An instrument under subsection (1) is not a legislative instrument.

249 Specification by class

To avoid doubt, a reference in this Act to a class or kind of matter

or thing does not, by implication, affect the application of:

(a) subsection 13(3) of the Legislative Instruments Act 2003; or

(b) subsection 46(3) of the Acts Interpretation Act 1901.

250 Schedule 1 (alternative constitutional basis)

Schedule 1 has effect.

251 Review of operation of Act

(1) Before the end of the period of 7 years after the commencement of

this section, the Minister must cause to be conducted a review of

the operation of this Act, the regulations and the AML/CTF Rules.

(2) The Minister must cause to be prepared a report of the review

under subsection (1).

(3) The Minister must cause copies of the report to be tabled in each

House of the Parliament within 15 sittings days of that House after

the completion of the preparation of the report.

252 Regulations

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted to be prescribed by this Act; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Penalties

(2) The regulations may prescribe penalties for offences against the

regulations. A penalty must not be more than 50 penalty units.



Section 252


Fees

(3) The regulations may make provision for and in relation to fees

payable in respect of the performance of a function, or the exercise

of a power, by the AUSTRAC CEO.

(4) A fee must not be such as to amount to taxation.

(5) A fee is payable to the Commonwealth.


Alternative constitutional basis Schedule 1

Clause 1


Schedule 1—Alternative constitutional basis Note: See section 250.

1 Alternative constitutional basis

(1) Without limiting its effect apart from this clause, this Act also has

effect as provided by this clause.

Limited types of designated services

(2) This Act also has the effect it would have if subclause (3) had not

been enacted and each reference in this Act to a designated service

were, by express provision, confined to a designated service where:

(a) the designated service consists of:

(i) issuing a bill of exchange or a promissory note; or

(ii) in the capacity of agent of a person, acquiring or

disposing of a bill of exchange, or a promissory note, on

behalf of the person; or

(b) both:

(i) the provision of the designated service involves a

transaction; and

(ii) the transaction involves the transfer of physical

currency from one person to another; or

(c) the customer of the designated service is a constitutional

corporation; or

(d) the designated service is provided by a constitutional

corporation; or

(e) the designated service is provided in the course of, or in

relation to, any of the following:

(i) trade or commerce between Australia and places outside

Australia;

(ii) trade or commerce among the States;

(iii) trade or commerce within a Territory, between a State

or Territory or between 2 Territories;

(iv) the supply of goods or services to the Commonwealth or

an authority or instrumentality of the Commonwealth;

or


Schedule 1 Alternative constitutional basis

Clause 1


(f) the designated service is provided in the course of, or in

relation to, banking to which paragraph 51(xiii) of the

Constitution applies; or

(g) the designated service is provided in the course of, or in

relation to, insurance to which paragraph 51(xiv) of the

Constitution applies; or

(h) the designated service is provided using a postal, telegraphic,

telephonic or other like service (within the meaning of

paragraph 51(v) of the Constitution); or

(i) the designated service is provided:

(i) in a Territory; or

(ii) in a Commonwealth place; or

(iii) in a foreign country; or

(j) the designated service is provided by a person:

(i) at or through a permanent establishment of the person in

a Territory; or

(ii) at or through a permanent establishment of the person in

a Commonwealth place; or

(iii) at or through a permanent establishment of the person in

a foreign country.

Note: See also subclause (6) (extended meaning of permanent establishment).

Administration and enforcement of taxation laws and other laws

(3) This Act also has the effect it would have if:

(a) subclause (2) had not been enacted; and

(b) this Act did not apply except to the extent to which it:

(i) facilitates the administration or enforcement of taxation

laws; or

(ii) facilitates the administration or enforcement of laws of

the Commonwealth or of the Territories (other than

taxation laws).

Cross-border movements of bearer negotiable instruments

(4) Division 3 of Part 4 and section 200 also have the effect they

would have if each reference in that Division and that section to a

bearer negotiable instrument were, by express provision, confined

to a bearer negotiable instrument that is:


Alternative constitutional basis Schedule 1

Clause 1



(b) a promissory note.

Correspondent banking

(5) Part 8 and section 117 also have the effect they would have if:

(a) each reference in section 95, 96 or 99 to another person were,

by express provision, confined to another person that is:

(i) a constitutional corporation; or

(ii) an individual who is physically present in a foreign

country; and

(b) each reference in section 96, 97 or 98 to another financial

institution were, by express provision, confined to another

financial institution that is:

(i) a constitutional corporation; or

(ii) an individual who is physically present in a foreign

country.

Extended meaning of permanent establishment

(6) For the purposes of paragraph (2)(j) of this clause:

(a) subsection 21(2) has effect as if each reference in that

subsection to a country included a reference to:

(i) a Territory; and

(ii) a Commonwealth place; and

(b) ignore subsection 21(3).


Notes to the Anti-Money Laundering and Counter-Terrorism Financing Act

2006

Table of Acts


Notes to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Note 1

The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 as

shown in this compilation comprises Act No. 169, 2006 amended as indicated

in the Tables below.

The Anti-Money Laundering and Counter-Terrorism Financing Act 2006 was

amended by the Anti-Money Laundering and Counter-Terrorism Financing

Regulations 2008 (SLI 2008 No. 2). The amendment is incorporated in this

compilation.

For application, saving or transitional provisions made by the Freedom of

Information Amendment (Reform) Act 2010, see Act No. 51, 2010.

For all other relevant information pertaining to application, saving or

transitional provisions see Table A.

Table of Acts

Act Number and year

Date of Assent

Date of commencement

Application, saving or transitional provisions

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

169, 2006 12 Dec 2006 Ss. 1 and 2: Royal Assent Ss. 27–35, 37–39, 80–93, 111–114 and 116: 12 Dec 2007 Ss. 36, 40–46 and 49–51: 12 Dec 2008 Ss. 47, 48, 94–100 and 117: 12 June 2007 Remainder: 13 Dec 2006

Anti-Money Laundering and Counter-Terrorism Financing Amendment Act 2007

52, 2007 12 Apr 2007 Schedule 1 (items 2–13, 15–19, 21–52, 66–68): 13 Apr 2007 Schedule 1 (items 14, 20): (a)

Sch. 1 (items 66–68)



2006

Table of Acts


Act Number and year

Date of Assent



Financial Sector Legislation Amendment (Simplifying Regulation and Review) Act 2007

154, 2007 24 Sept 2007 Schedule 1 (items 156, 157): 1 Jan 2008 Schedule 1 (item 296): Royal Assent

Sch. 1 (item 296)

First Home Saver Accounts (Consequential Amendments) Act 2008

45, 2008 25 June 2008 Schedule 3 (items 1–4): 26 June 2008

—

Statute Law Revision Act 2008

73, 2008 3 July 2008 Schedule 1 (item 5): (b)

—

First Home Saver Accounts (Further Provisions) Amendment Act 2008

92, 2008 30 Sept 2008 Schedule 1 (items 1, 26): 1 Oct 2008

Sch. 1 (item 26)

Customs Legislation Amendment (Name Change) Act 2009

33, 2009 22 May 2009 Schedule 2 (item 5): 23 May 2009

—

Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010

4, 2010 19 Feb 2010 Schedule 5 (items 25–36): 20 Feb 2010

Sch. 5 (items 29, 31, 36)

Statute Law Revision Act 2010

8, 2010 1 Mar 2010 Schedule 5 (items 4–9): Royal Assent Schedule 5 (item 137(a)): (c)

—

Freedom of Information Amendment (Reform) Act 2010

51, 2010 31 May 2010 Schedule 5 (item 1) and Schedule 7: (d)

Sch. 7 [see Note 1]

Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010

103, 2010 13 July 2010 Schedule 6 (items 1, 21–23, 157, 158): 1 Jan 2011

—

National Security Legislation Amendment Act 2010

127, 2010 24 Nov 2010 Schedule 10 (items 2, 3): 25 Nov 2010

—

Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010

145, 2010 16 Dec 2010 Schedule 2 (items 3, 4, 123(1)): 17 Dec 2010

Sch. 2 (item 123(1))

Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011

3, 2011 2 Mar 2011 Schedule 4: 3 Mar 2011

Sch. 4 (item 8)

Human Services Legislation Amendment Act 2011

32, 2011 25 May 2011 Schedule 4 (items 47–49): 1 July 2011

—



2006

Table of Acts


Act Number and year

Date of Assent



Acts Interpretation Amendment Act 2011

46, 2011 27 June 2011 Schedule 2 (items 67–72) and Schedule 3 (items 10, 11): [see Note 2 and Table A]

Sch. 3 (items 10, 11)

Australian Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy (Consequential Amendments) Act 2011

56, 2011 28 June 2011 Schedule 1: 1 Nov 2011 (see F2011L02035) Schedule 2 (items 1–6): (e) Schedule 2 (item 7): (e) Remainder: Royal Assent

S. 4 and Sch. 2 (item 7)

Combating the Financing of People Smuggling and Other Measures Act 2011

60, 2011 28 June 2011 Schedule 1 (items 1–11): 1 Nov 2011 (see F2011L02019) Schedule 1 (items 14–48, 53–57): 1 Nov 2011 Schedule 1 (items 12, 13, 49–52, 58), Schedule 2 and Schedule 3 (items 1–10): Royal Assent

Sch. 1 (items 49–58)

Carbon Credits (Consequential Amendments) Act 2011

102, 2011 15 Sept 2011 Schedule 1 (items 1–4): 8 Dec 2011 (see s. 2(1))

—

Inspector-General of Intelligence and Security Amendment Act 2011

118, 2011 14 Oct 2011 Schedule 2: 15 Oct 2011

—

Clean Energy (Consequential Amendments) Act 2011

132, 2011 18 Nov 2011 Schedule 1 (items 1–3): [see s. 2(1) and Note 3]

—



2006

Act Notes


(a) Subsection 2(1) (items 3 and 5) of the Anti-Money Laundering and Counter-Terrorism Financing Amendment Act 2007 provides as follows:

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.




3. Schedule 1,

item 14

Immediately after the commencement of

section 42 of the Anti-Money Laundering and


12 December 2008

5. Schedule 1,

item 20




12 December 2007

(b) Subsection 2(1) (item 6) of the Statute Law Revision Act 2008 provides as follows:



6. Schedule 1,

item 5




13 December 2006

(c) Subsection 2(1) (items 31 and 38) of the Statute Law Revision Act 2010 provides as follows:



31. Schedule 5,

items 1 to 51

The day this Act receives the Royal Assent. 1 March 2010

38. Schedule 5,

Parts 2 and 3

Immediately after the provision(s) covered by table

item 31.

1 March 2010

(d) Subsection 2(1) (item 7) of the Freedom of Information Amendment (Reform) Act 2010 provides as follows:




2006

Act Notes



7. Schedules 4

to 7

Immediately after the commencement of section 3

of the Australian Information Commissioner Act

2010.

However, if section 3 of the Australian Information

Commissioner Act 2010 does not commence, the

provision(s) do not commence at all.

1 November 2010

(e) Subsection 2(1) (items 2–4) of the Australian Transaction Reports and Analysis Centre Supervisory Cost Recovery Levy (Consequential Amendments) Act 2011 provides as follows:



2. Schedule 1 A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence

within the period of 6 months beginning on the day

this Act receives the Royal Assent, they commence

on the day after the end of that period.

1 November

2011 (see

F2011L02035)

3. Schedule 2,

Part 1

The later of:

(a) the commencement of item 31 of Schedule 1 to the Combating the Financing of People Smuggling and Other Measures Act 2011; and

(b) immediately after the commencement of the provision(s) covered by table item 2.

However, the provision(s) do not commence at all

unless both of the events mentioned in

paragraphs (a) and (b) occur.

1 November

2011

(paragraph (b)

applies)

4. Schedule 2,

Part 2

Immediately after the commencement of the

provision(s) covered by table item 2.

1 November

2011



2006

Table of Amendments


Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted

Provision affected How affected

Part 1

Notes 2, 3 to s. 3(3) .................. am. No. 8, 2010

S. 4 .......................................... am. No. 60, 2011

S. 5 .......................................... am. Nos. 52 and 154, 2007; Nos. 45 and 92, 2008; No. 33, 2009; Nos. 4, 8 and 103, 2010; Nos. 32, 56, 60, 102 and 118, 2011

S. 6 .......................................... am. No. 52, 2007; SLI 2008 No. 2; No. 45, 2008; Nos. 4 and 103, 2010; Nos. 60 and 102, 2011

S. 10 ........................................ am. No. 4, 2010

Part 2

Division 5A

Div. 5A of Part 2 ....................... ad. No. 60, 2011

Ss. 35A–35H ............................ ad. No. 60, 2011

Ss. 35J–35L ............................. ad. No. 60, 2011

Division 6

S. 36 ........................................ am. No. 60, 2011

Division 7

S. 37 ........................................ am. No. 60, 2011

Part 3

Division 2

S. 42 ........................................ am. No. 52, 2007; No. 60, 2011

Division 3

S. 44 ........................................ am. No. 60, 2011

Division 4

S. 46 ........................................ am. No. 4, 2010

Division 6

S. 49 ........................................ am. No. 60, 2011

S. 49A ...................................... ad. No. 60, 2011

Part 3A

Part 3A ..................................... ad. No. 56, 2011

Ss. 51A–51G ............................ ad. No. 56, 2011

Part 4

Division 3

S. 59 ........................................ am. No. 4, 2010

Division 4

Ss. 61, 62 ................................. am. No. 3, 2011

Part 5

Division 3

S. 66 ........................................ am. No. 52, 2007



2006

Table of Amendments




Division 4

S. 67 ........................................ am. No. 52, 2007

S. 71 ........................................ am. No. 52, 2007

Part 6

Heading to Part 6 ..................... rs. No. 60, 2011

Division 1

Heading to Div. 1 of Part 6........ ad. No. 60, 2011

S. 73 ........................................ am. No. 60, 2011

Division 2

Heading to Div. 2 of Part 6........ ad. No. 60, 2011

Heading to s. 74 ....................... am. No. 60, 2011

S. 74 ........................................ am. No. 60, 2011

Division 3

Div. 3 of Part 6 ......................... ad. No. 60, 2011

S. 75 ........................................ rs. No. 60, 2011

Ss. 75A–75H ............................ ad. No. 60, 2011

Ss. 75J–75N ............................. ad. No. 60, 2011

S. 75P ...................................... ad. No. 60, 2011

Division 4

Div. 4 of Part 6 ......................... ad. No. 60, 2011

Ss. 75Q–75S ............................ ad. No. 60, 2011

Division 5

Div. 5 of Part 6 ......................... ad. No. 60, 2011

S. 75T ...................................... ad. No. 60, 2011

Ss. 76–79 ................................. rep. No. 60, 2011

S. 79A ...................................... ad. No. 52, 2007 rep. No. 60, 2011

Part 7

Division 3

S. 84 ........................................ am. No. 60, 2011

S. 85 ........................................ am. No. 52, 2007

Part 11

Division 3

S. 123....................................... am. No. 52, 2007; No. 4, 2010; No. 60, 2011

S. 124....................................... am. No. 3, 2011

Division 4

Subdivision A

S. 125....................................... am. No. 145, 2010

Subdivision B

S. 127....................................... am. No. 52, 2007; No. 60, 2011

S. 128....................................... am. No. 52, 2007; No. 127, 2010; Nos. 3 and 60, 2011



2006

Table of Amendments




Subdivision C

S. 130....................................... am. No. 3, 2011

Note to s. 130(3)....................... am. No. 73, 2008

S. 131....................................... am. No. 3, 2011

Subdivision D

S. 133A .................................... ad. No. 52, 2007

Ss. 133B, 133C ........................ ad. No. 60, 2011

Part 12

Ss. 136, 137 ............................. am. No. 52, 2007

Ss. 139–141 ............................. am. No. 52, 2007

Part 13

Division 2

S. 145....................................... am. No. 52, 2007

Division 7

S. 164A .................................... ad. No. 52, 2007

Part 14

S. 167....................................... am. No. 60, 2011

Part 15

Division 3

Heading to Div. 3 of Part 15 ...... rs. No. 60, 2011

S. 184....................................... am. Nos. 56 and 60, 2011

S. 185....................................... am. No. 60, 2011

Heading to s. 186 ..................... am. No. 60, 2011

Heading to s. 186A ................... am. No. 56, 2011

S. 186A .................................... ad. No. 60, 2011 am. No. 56, 2011

Ss. 188, 189 ............................. am. No. 60, 2011

Division 4

S. 190....................................... am. No. 60, 2011

Division 5

S. 191A .................................... ad. No. 52, 2007

Division 7

S. 197....................................... am. No. 52, 2007; No. 8, 2010

Part 16

Division 3

Subdivision A

S. 212....................................... am. No. 51, 2010

Division 6

S. 228....................................... am. No. 52, 2007

Part 18

S. 248....................................... am. No. 8, 2010



2006

Note 2


Note 2

Acts Interpretation Amendment Act 2011 (No. 46, 2011)

The following amendments commence on 27 December 2011 unless proclaimed

earlier:

Schedule 2

67 Subsection 164(1) (note 1)

Omit “subsection 46(3)”, substitute “subsection 33(3AB)”.

68 Subsection 214(3) (note)

Repeal the note, substitute:

Note: The AUSTRAC CEO may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

69 Subsection 221(1)

Omit “(1)”.

70 At the end of subsection 221(1)

Add:

Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

71 Subsection 221(2)

Repeal the subsection.

72 Paragraph 249(b)

Omit “subsection 46(3)”, substitute “subsection 33(3AB)”.

As at 8 December 2011 the amendments are not incorporated in this

compilation.



2006

Note 3


Note 3

Clean Energy (Consequential Amendments) Act 2011 (No. 132, 2011)

The following amendments commence on 2 April 2012:

Schedule 1

1 Section 5

Insert:

carbon unit has the same meaning as in the Clean Energy Act

2011.

2 Subsection 6(2) (after paragraph (b) of the cell at table item 33, column headed “Provision of a designated service”)

Insert:

(baa) a carbon unit; or

3 Subsection 6(2) (paragraph (d) of the cell at table item 33, column headed “Provision of a designated service”)

After “derivatives,”, insert “carbon units,”.

As at 8 December 2011 the amendments are not incorporated in this

compilation.



2006

Table A


Table A


Anti-Money Laundering and Counter-Terrorism Financing Amendment Act

2007 (No. 52, 2007)

Schedule 1

66 Application of amendment—section 71 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006

The amendment of subparagraph 71(b)(v) of the Anti-Money

Laundering and Counter-Terrorism Financing Act 2006 made by this

Schedule applies in relation to an electronic funds transfer instruction

given after the commencement of this item.

67 AAT review of decisions made under section 161 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006

(1) Section 164A of the Anti-Money Laundering and Counter-Terrorism

Financing Act 2006 applies in relation to a decision made under

section 161 of that Act before, at or after the commencement of this

item.

(2) If, apart from this subitem, the prescribed time for the purposes of the

application of paragraph 29(1)(d) of the Administrative Appeals

Tribunal Act 1975 to a decision made under section 161 of the


before the commencement of this item would end before that

commencement, that prescribed time is taken, for those purposes, to be

the period:

(a) beginning on the day on which the decision is made; and

(b) ending on the 28th day after the day on which this item

commences.



2006

Table A


68 AAT review of decisions made under section 191 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006


Financing Act 2006 applies in relation to a decision made under

section 191 of that Act before, at or after the commencement of this

item.

(2) If, apart from this subitem, the prescribed time for the purposes of the

application of paragraph 29(1)(d) of the Administrative Appeals

Tribunal Act 1975 to a decision made under section 191 of the


before the commencement of this item would end before that

commencement, that prescribed time is taken, for those purposes, to be

the period:

(a) beginning on the day on which the decision is made; and

(b) ending on the 28th day after the day on which this item

commences.

Financial Sector Legislation Amendment (Simplifying Regulation and Review)

Act 2007 (No. 154, 2007)

Schedule 1

296 Regulations may prescribe matters

The Governor-General may make regulations prescribing matters of a

transitional nature (including prescribing any saving or application

provisions) in relation to the amendments or repeals made by this

Schedule.



2006

Table A


First Home Saver Accounts (Further Provisions) Amendment Act 2008

(No. 92, 2008)

Schedule 1

26 Application

The amendments made by this Schedule apply from 1 October 2008.

Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2)

2010 (No. 4, 2010)

Schedule 5

29 Application

The amendments of section 6 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 made by this Part apply in

relation to the provision of designated services on or after the

commencement of this Part.

31 Transitional provisions for AML/CTF Rules

(1) This item applies if, immediately before the commencement of this

Part, a provision of the AML/CTF Rules specified a person for the

purposes of subparagraph 10(1)(a)(v) or (b)(v) of the Anti-Money

Laundering and Counter-Terrorism Financing Act 2006 (as in force

immediately before that commencement).

(2) The provision has effect as if it specified the person for the purposes of

paragraph (e) of the definition of non-financier in section 5 of that Act

as amended by this Part.

(3) This item does not prevent the amendment or repeal of those rules so as

to affect the provision.



2006

Table A


36 Application

Subsection 123(3) of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006, as amended by this Part,

applies in relation to requirements made under subsection 49(1) of that

Act before, on or after the commencement of this item.

Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010

(No. 145, 2010)

Schedule 2

123 Application of amendments

(1) The amendments made by items 3, 4 and 93 of this Schedule apply to

records and disclosures made on or after the commencement of those

items (whenever the information was obtained).

Law and Justice Legislation Amendment (Identity Crimes and Other Measures)

Act 2011 (No. 3, 2011)

Schedule 4

8 Application

(1) The amendments of section 62 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 made by this Schedule apply in

relation to aircraft or ships leaving a place outside Australia on or after

the commencement of this item.

(2) The amendment of section 124 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 made by this Schedule applies

in relation to court or tribunal proceedings instituted on or after the

commencement of this item.

(3) The amendment of section 128 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 made by this Schedule applies

in relation to information obtained under section 16 of the Financial

Transaction Reports Act 1988 before, on or after the commencement of

this item.



2006

Table A


(4) The amendments of sections 130 and 131 of the Anti-Money

Laundering and Counter-Terrorism Financing Act 2006 made by this

Schedule apply in relation to AUSTRAC information obtained before,

on or after the commencement of this item.

Acts Interpretation Amendment Act 2011 (No. 46, 2011)

The following provisions commence on 27 December 2011 unless proclaimed

earlier:

Schedule 3

10 Saving—appointments

The amendments made by Schedule 2 do not affect the validity of an

appointment that was made under an Act before the commencement of

this item and that was in force immediately before that commencement.

11 Transitional regulations

The Governor-General may make regulations prescribing matters of a

transitional nature (including prescribing any saving or application

provisions) relating to the amendments and repeals made by

Schedules 1 and 2.

Australian Transaction Reports and Analysis Centre Supervisory Cost Recovery

Levy (Consequential Amendments) Act 2011

(No. 56, 2011)

4 Review of operation of AUSTRAC cost recovery levy

(1) The Minister must cause an independent review of the operation of

the levy imposed by the Australian Transaction Reports and

Analysis Centre Supervisory Cost Recovery Levy Act 2011 to be

undertaken as soon as possible after the second anniversary of the

commencement of section 3 of that Act.

(2) The person who undertakes the review must give the Minister a

written report of the review within 6 months after the second

anniversary of the commencement of section 3 of the Australian



2006

Table A


Transaction Reports and Analysis Centre Supervisory Cost

Recovery Levy Act 2011.

(3) The Minister must cause a copy of the report of the review to be

tabled in each House of Parliament within 15 sitting days of

receiving it.

(4) A report prepared under subsection (1) must include but is not

limited to:

(a) a review of the levy calculation methodology;

(b) consultation with industry participants including small and

micro businesses about the impact of the levy and the costs

of complying with the Australian Transaction Reports and

Analysis Centre Supervisory Cost Recovery Levy Act 2011.

Schedule 2

7 Transitional

(1) If this item commences before the commencement of Part 1 of this

Schedule, Division 3 of Part 15 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 applies with the modifications

set out in this item for the period:

(a) beginning immediately after the commencement of this item;

and

(b) ending just before the commencement of Part 1 of this

Schedule.

(2) Treat a reference in that Division to “subsection 53(3) or 59(4)” as a

reference to “subsection 51B(1), 51F(1), 53(3) or 59(4)”.

(3) Assume the following subsection was added at the end of section 185 of

that Act:

(2) An infringement notice may specify more than one alleged

contravention of one or more of the provisions referred to in

subsection 184(1). If it does so, the infringement notice must set

out the details referred to in paragraph (1)(c) in relation to each

alleged contravention.

(4) Assume that the following section was inserted after section 186 of that

Act:



2006

Table A


186A Amount of penalty—breaches of certain provisions of Part 3A

The penalty to be specified in an infringement notice for an alleged

contravention of subsection 51B(1) or 51F(1) must be:

(a) for an alleged contravention by a body corporate—a

pecuniary penalty equal to 60 penalty units; and

(b) for an alleged contravention by a person other than a body

corporate—12 penalty units.

Combating the Financing of People Smuggling and Other Measures Act 2011

(No. 60, 2011)

Schedule 1

49 Ongoing customer due diligence

If an obligation is imposed by subsection 36(1) of the Anti-Money

Laundering and Counter-Terrorism Financing Act 2006:

(a) on or after the day on which this Act receives the Royal

Assent; and

(b) on a reporting entity:

(i) that provides a designated service covered by item 31 or

32 of table 1 in section 6 of that Act; and

(ii) that provides that service as part of a network of persons

referred to in item 32A of that table operated by another

reporting entity;

that obligation may be discharged by that other reporting entity.

50 AML/CTF Rules may make provision in relation to reports by certain reporting entities

(1) The AML/CTF Rules may make provision for and in relation to reports

required by Part 3 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 to be given, on or after the day

on which this Act receives the Royal Assent, by a reporting entity (the

remittance affiliate):

(a) that provides a designated service covered by item 31 or 32

of table 1 in section 6 of that Act; and



2006

Table A


(b) that provides that service as part of a network of persons


reporting entity (the remittance network provider).

(2) Without limiting subitem (1), the AML/CTF Rules may provide:

(a) that an obligation imposed by that Part upon the remittance

affiliate to provide a report is taken instead, or in addition, to

be an obligation imposed upon the remittance network

provider; and

(b) that an obligation imposed by this Part on the remittance

affiliate may be discharged by the remittance network

provider; and

(c) that a report required to be provided as mentioned in

paragraph (a) must, or may, be given by the remittance

network provider in the manner specified in the AML/CTF

Rules.

51 Tipping off

(1) Subsection 123(2) of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 does not apply to the disclosure

of information by a reporting entity on or after the day on which this

Act receives the Royal Assent if:

(a) the reporting entity is an entity:

(i) that provides a designated service covered by item 31 or

32 of table 1 in section 6 of that Act; and

(ii) that provides that service as part of a network of persons



(b) the disclosure is made to that other reporting entity.

(2) Subsection 123(2) of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 does not apply to the disclosure

of information by a reporting entity on or after the day on which this

Act receives the Royal Assent if:

(a) the reporting entity provides a designated service covered by

item 32A of table 1 in section 6 of that Act; and

(b) the disclosure is made to a customer of that designated

service.



2006

Table A


52 Application of the reporting entity provisions of the new law to remittance network providers

(1) The following provisions of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 do not apply, until 12 months

after the day on which this Act receives the Royal Assent, to a reporting

entity in its capacity as an entity that provides a designated service

covered by item 32A of table 1 in section 6 of that Act:

(a) Part 2 (which deals with identification procedures);

(b) Division 5 of Part 3 (which deals with compliance reports);

(c) Part 7 (which deals with AML/CTF programs);

(d) Divisions 3 and 5 of Part 10 (which deal with record

keeping).

(2) Subject to this Part and Part 4, the remaining provisions of the


apply, on and after the day on which this Act receives the Royal Assent,

to such a reporting entity.

53 Continuation of old law for certain purposes relating to the old Register

(1) The Anti-Money Laundering and Counter-Terrorism Financing Act

2006 is taken to continue in operation after the registration

commencement day for the purposes of this item.

(2) After the registration commencement day:

(a) the old Register is taken to continue in existence; and

(b) subject to this item, the AUSTRAC CEO must maintain the

old Register.

(3) Despite subitems (1) and (2):

(a) except with the consent of the AUSTRAC CEO, an

application cannot be made for a person’s name and

registrable details to be entered on the old Register after the

registration commencement day; and

(b) the AUSTRAC CEO may enter a person’s name and

registrable details on the old Register after the registration

commencement day only if an application has been made

with the consent of the AUSTRAC CEO.



2006

Table A


(4) The AUSTRAC CEO must not give consent as mentioned in

paragraph (3)(a) unless he or she is satisfied that it is appropriate to do

so, having regard to the matters (if any) specified in the Rules.

(5) The AUSTRAC CEO may cancel a person’s registration on the old

Register if the AUSTRAC CEO is satisfied that not to do so would

involve a significant money laundering, financing of terrorism or people

smuggling risk.

(6) The AUSTRAC CEO must remove a person’s name and registrable

details from the old Register if:

(a) an application is made under the new law for registration of

the person and the application is finally determined; or

(b) the person’s registration is cancelled under subitem (5).

(7) A decision to refuse consent under paragraph (3)(a) and a decision to

cancel a person’s registration under subitem (5) are taken to be

reviewable decisions within the meaning of section 5 of the new law.

54 Cessation of Register

The AUSTRAC CEO ceases to be required to maintain the old Register,

and the old Register ceases to have effect, when the AUSTRAC CEO

has finally determined all applications made by, or in relation to, the

following:

(a) persons:

(i) whose names and registrable details were entered on the

old Register as at, or after, the registration

commencement day; and

(ii) who made an application, under the new law, for

registration as an independent remittance dealer during

the period of 6 months commencing on the registration

commencement day;

(b) persons:

(i) whose names and registrable details were on the old

Register as at, or after, the registration commencement

day; and

(ii) in relation to whom an application was made, under the

new law, for registration as a remittance affiliate of a

registered remittance network provider during the

period of 12 months commencing on the registration

commencement day.



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Note: Under item 55, persons entered on the old Register have 6 months for an application to be made for registration as an independent remittance dealer, and 12 months for an application to be made for registration as a remittance affiliate of a registered remittance network provider.

55 Modifications of new law for certain purposes

Registrable remittance network services—persons who were providing such services immediately before commencement have 12 months to apply for registration

(1) Subsection 74(1) of the new law does not apply to the provision of a

registrable remittance network service by a person on or after the

registration commencement day if:

(a) immediately before the registration commencement day, the

person was providing a service of that kind; and

(b) either:

(i) the service was provided during the period of 12 months

beginning on the registration commencement day; or

(ii) during the period of 12 months beginning on the

registration commencement day, the person made an

application under the new law for registration as a

remittance network provider, and the application had

not been finally determined at the service provision

time.

Registrable designated remittance services—persons entered on old Register have 6 months to apply for registration as an independent remittance dealer

(2) Subsection 74(1A) of the new law does not apply to the provision of a

registrable designated remittance service by a person on or after the

registration commencement day if:

(a) when the service was provided, the person’s name and

registrable details were entered on the old Register as

continued in existence by item 53 of this Schedule; and

(b) either:




registration commencement day, the person made an

application under the new law for registration as an



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Table A


independent remittance dealer, and the application had

not been finally determined when the service was

provided.

Registrable designated remittance services provided by persons entered on old Register—persons entered on old Register have 12 months to apply for registration as a remittance affiliate

(3) Subsection 74(1B) of the new law does not apply to the provision of a

designated remittance service by a person on or after the registration

commencement day if:

(a) when the service was provided, the person’s name and

registrable details were entered on the old Register as

continued in existence by item 53 of this Schedule; and

(b) either:




registration commencement day, an application for

registration of the person as a remittance affiliate of a

registered remittance network provider was made under

the new law, and the application had not been finally

determined when the service was provided.

56 Continuation of certain provisions of the old law


Financing Act 2006, as in force immediately before the registration

commencement day, continues in operation, on and after the registration

commencement day, in relation to proceedings in respect of a provision

of that Act, as if it had not been repealed.

(2) Section 167 of the of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 has effect, on and after the

registration commencement day, as if the reference in that section to the

Remittance Sector Register included a reference to the old Register.

57 Definitions

(1) In this Part:



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Table A


new law means the Anti-Money Laundering and Counter-Terrorism

Financing Act 2006 as in force after the registration commencement

day.

old Register means the Register of Providers of Designated Remittance

Services within the meaning of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006, as in force immediately before

the registration commencement day.

registration commencement day means the day on which item 1 of this

Schedule commences.

(2) For the purposes of this Division, an application for registration of a

person is finally determined when:

(a) a decision has been made to register or not to register the

person under the new law; and

(b) all reviews and appeal rights that apply in relation to the

decision have been exhausted.

58 Transitional regulations

Regulations may be made prescribing matters of a transitional nature

(including prescribing any saving or application provisions) relating to

the amendments or repeals made by this Act.


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